Sam Berger Transcript — Oct. 3, 2025

Kevin Johnson/NPF (00:00:01):

So we’re in the midst of another shutdown, obviously, and how we got here is always a messy political story, but there are actual laws that limit what government officials can and cannot do in a situation like this. For restoration, Sam Berger is here to offer an important perimeter. Sam is a senior fellow on the federal fiscal policy team at the Center on Budget and Policy Priorities. He served as an associate administrator of the Office of Information and Regulatory Affairs in the OMD and as director of Strategic Operations and Policy for the White House COVID-19 response team. Previously, Sam served as a senior policy advisor at the White House Domestic Policy Council where his work focused on the Affordable Care Act and Medicaid. Sam also worked at the OMD in other roles, including senior council and policy advisor where his work focused on a variety of legal and policy issues such as government shutdowns, sequestration, executive orders, and presidential memorandum. He has also been busy. He tells me, answering your colleagues’ questions on what the government can and cannot do, what those restrictions are. So we’re very lucky to have him here with us today, so please welcome us in.

Sam Berger/Center on Budget and Policy Priorities (00:01:42):

Thanks so much. Also, this feels like the most intense job interview ever for me, so hopefully I pass. So I’m going to talk a little bit about the shutdown, some of the laws that govern it. You should feel free to jump in at any point with questions, but I’ll also try and save a lot of time at the end because the shutdown raises a lot of questions. Just to give you a sense of my background, my shutdown expertise comes from being a lawyer in the Office of Management and Budget during the first shutdown, the one over the Affordable Care Act, or an effort to undermine the Affordable Care Act. It’s sort of unfortunate that 12 years later, that still proves to be an extremely useful set of knowledge that I have, but as you all know, shutdowns keep coming up. So I’m going to talk a little bit about the legal framework that governs a shutdown and then happy to jump in on any sort of issues that you all would want to talk about.

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More specific than that. So first of all, what is the shutdown? And I’m going to start at a basic level. I know some of you, maybe all of you already understand this, but it’s just useful to kind of ground and then build from that. So Congress provides appropriations, provides funding in two ways, so what we call mandatory funding, and it’s not mandatory because the administration is required to spend it. The administration is required to spend all the money that’s appropriated, although that’s a whole separate issue. If you all want to talk about that, we can do that as well. But in the sense that basically it kind of runs on autopilot, like social security doesn’t have to be re-upped every year. Congress can make changes. There are other things where there are reauthorizations that come up, but generally speaking, the money just goes out. There’s just a permanent source of funding where the money goes out.

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Then you have separate what we call discretionary, and that’s where Congress is making choices on annual or biannual, usually basis annual in the sense of when I say biannual, there are yearly appropriations. Some accounts are funded for two years, and so you might see them re-up to different times. But basically this is when Congress comes back every year to set funding rates, and this is most of the funding for agencies. Many of the programs that aren’t sort of the big ones, Medicare, social security, are funded through annual appropriations. A shutdown is when an agreement cannot be reached on annual appropriations, and so the funding lapses, meaning there is no appropriated funding. And so the reason that we shut down is because of something called the Anti-Deficiency Act. The Anti-Deficiency Act is the law that basically says you can’t spend money unless Congress has provided it.

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But importantly, it also says you can’t commit to spend money unless Congress has provided it. So that’s why you can’t incur obligations, meaning make a promise to spend money and you can’t actually get money out the door during a shutdown for funding that has lapsed and that is important. So what happens during a shutdown? So everything shuts down except for a set of activities that continue. And a lot of times people will talk about it as people as programs. That’s not the right way to think of it. The right way to think of it is activities and then based on those activities, what people are there. So that’s how it actually works inside. So what activities continue? The first are things that are funded, social Security, Medicare, but also some fee funded agencies, so CFPB, things that get their money not through annual appropriations, just keep operating.

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They have money. Then you have things that can continue during a lapse in appropriations where there is no money. In some cases, Congress has specifically said activities can continue. DODs feed and forge provision is sort of the classic example. Basically the idea is if the DOD needs stuff for military supplies and they don’t have money at any given time, they don’t have to call up Congress and be like, Hey, we really need to get these supplies to help troops in the field. They just do it and then later they kind of figure it out. So it’s a limited authority, but it’s there for DOD. Then you have life and property. So this is where there’s an imminent threat to life and property. That activity can continue. So think prison guards, FBI, air traffic controllers and military national security. And when I say air traffic controllers, this brings up an interesting point.

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When you’re talking about imminent threats to life and property, you do assume that the economy continues. So one view is like, well, why do our traffic controllers have to show up if they’re not there? Planes can’t fly. Everyone’s totally safe. You don’t do that. You assume that they’re still going to be flights, people are getting in cars. All this stuff is still continuing to happen. Then you have what’s called necessary implication. What that means is you have a funded function, but you need some unfunded work to support it. Again, think of social security. So social security has money, but the people that actually process everything, those folks are funded through annual appropriations, and so they come into work and make sure that social security still functions. And this is a really important distinction when you’re talking about necessary implication. The key thing is, is there a reason that activity that is funded must continue during a shutdown?

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So the thing to always think about the logic always behind a shutdown is that shutdowns are short. Remember the longest shutdown a little bit more than 30 days, most shutdowns just a couple days. So the question is always, does this activity have to continue during a shutdown? So that’s why, for example, IRS refunds don’t continue during a shutdown. I know the Trump administration was going to try and do that during the longer one, but historically and under the law, they don’t continue. No required Social security payments have to go on and date certain specific amount to a specific person on a specific day. That’s not the way that, for example, refunds work, refunds get processes. They come in, they go back out. If they’re a little bit late, there’s a process for basically compensating the individual for it. So there’s all a whole setup. So that’s why that doesn’t happen during the shutdown. But social security payments do. The last one of these is constitutional, the president’s constitutional responsibilities.

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This is very narrowly construed because one view is like, well, the president’s job is to make sure stuff runs so everything can run. That would make no sense. We’re talking about things like signing a bill to get out of a shutdown, negotiating peace treaties, sending troops into battle, things that are specifically listed in the Constitution as having to continue. Those can continue during a shutdown as well. So those are the basic parameters. So what are some of the limitations? So the biggest limitation is that in all these cases, there’s no money going out the door. This is all IOUs, and that’s really important when you think about what’s the likely period of time in which a shutdown can continue. One of the big factors here is that no one is getting paid. No one, unless you work in an agency that has funding, and even if you see things like, well, maybe they’ll pass a bill to pay troops, that’s obviously significant, but what about prison guards and air traffic controllers, FBI, right?

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These folks aren’t getting paid. And as you get further out, that becomes more and more of issue for them. If you think about it how it works, think about your own paychecks. You get your first paycheck, that’s usually for the two weeks you worked prior. So the first paycheck, usually people are getting about a full, if not a full paycheck, second one, usually it’s about half that third paycheck, nothing. They can’t use IOUs to pay groceries, pay renter mortgage. And so that’s when you start to see the pressure really ratcheting up because people have to start making choices in their own lives about how they’re going to support their families. So money actually isn’t going out the door. The second thing is the executive branch doesn’t make calls for the judiciary or the branch. Each branch of government makes their own calls. And in fact, for those of you that have been up in Congress during a shutdown, each office makes their own calls.

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So each member, some members decide that everything they’re doing is critical to their constitutional responsibilities and everybody stays. Some people send almost everybody home. That’s each of their calls. Courts do the same thing, but critically, courts stay open. So the kinds of things, so first I should say during prior shutdowns, courts had carryover balances. They have carryover balances currently, and so they never actually hit the point of shutting down, but they’ve told us what will happen if they do, they’ll keep hearing cases. So somebody that’s for example, suing the administration for illegal actions, it’s taking, they can get into court, but they will start delaying things. Court maintenance, there may be certain kinds of trials that could happen today or a month from today, and they might say, let’s do this a month from today. Generally speaking, again, if you’re thinking about how courts are behaving, think about it as courts need to bring people staff in to do stuff, and the judge basically has to feel like it’s worth it to bring somebody in who’s not getting paid to work during a shutdown. There are a lot of things that are like that, but there are other things that aren’t. And so things that have basically no staff, meaning like briefing schedules, things where the court’s just receiving stuff, much more likely or much easier to just say that will continue. But things like criminal trials, those will keep going on. Emergency suits, those will keep going on, et cetera.

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The other thing is Department of Justice doesn’t have any funding, and so as a matter of course, the Department of Justice, the lawyers show up and say, Hey, court, we don’t have any money. Can you kick everything that we need to do until we have money? Again, if a court says no, then it becomes accepted and the DOJ lawyers work without paying to do those things. You won’t see significant interruptions in the judicial system in a way that would cause sort of widespread panic or havoc, but you will see some delays in certain cases. Last but not least, which is more relevant now than when I first wrote about this prior to the shutdown, but you can’t fire people, or at least you can’t fire people because of a shutdown. So we can talk a little bit more about what that means. So here we’re talking about reductions in force.

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So reductions in force are permanent changes that respond to permanent issues, agency reorganization, long-term lack of funding, et cetera. During a shutdown, what happens is people are put into a temporary non-duty status, what’s called a furlough, what’s always been the case, and that’s consistent with the law around RIFs and conceptually how you think of a shutdown. I mean, imagine if an agency said, Hey, we’re shut down. Congress said they’re going to pass a bill in four days, but we don’t have money now, so we should just sell off our building and go home. You would say, well, that’s the most absurd thing I’ve ever heard. The RIFs are equally absurd. None of it makes any sense. If you think about the timescale of a RIF, when you are told that you’re going to be RIFed and, sorry, RIF, here’s a reduction of force. Again, sorry.

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It’s a 60-day notice period. There has never been a shutdown that’s lasted 60 days. So the simple timescale here makes it very clear this is not a thing that deals or that is a response to a temporary lapse in funding. And in fact, if you actually look at the OPM guidance that was put out Sunday night, it actually says at the beginning it says, what’s the difference between a RIF and a furlough? And it’s like a RIF is a permanent change. A furlough is a temporary non-duty status. Now, I’m not exactly sure how that ended up in their FAQs. I mean, I know because that’s accurately true, but how that made it through the review process slightly unclear, but that kind of gives away the game, right? This is not what’s going on. Also, just to talk a little bit more about what the administration has said around RIFs, remember that they already had agencies put forward extensive RIF plans, and those RIF plans were basically supposed to be implemented around the end of the fiscal year.

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Now, the department of the Interior before the shutdown ever happened, said, ‘hey, in the middle of October, we’re going to be doing RIFs. The first RIF that we’ve seen was patent trade office – patent trade office is fee funded. They have money, they just keep operating. So again, that’s a choice. All of these things are choices unrelated to the shutdown. So that’s the first issue about legally can you use a shutdown to justify it? No. Second question is, can you legally conduct a RIF during a shutdown? The answer here is also no. Remember, HR departments don’t have funding either. Most of them have annual appropriations, and so if you’re going to do a – RIFs are complicated, they actually have a whole bunch of – basically most of the way that RIFs people get caught up, the federal government gets caught up, is never for the justification for the RIF.

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Almost never, always on the process side. Now, when I say never for the justification, we’ve never had this absurd of justification. So put that aside, but generally speaking, people don’t win by challenging, do you really need to get rid of this person? Couldn’t you move money around? That’s not where it’s all in the process because it’s very process intensive. That means you have to bring in a whole bunch of people to do this work, and you remember the exceptions we just talked about, right? If you think about the things that you’re accepted for, making sure our prisons are being run, military social security, if you think processing paperwork on someone’s RIF feels like which of these things does not like the other? If you remember that game yet, you’re right. What the administration has claimed is that it’s a core constitutional function. You’re welcome to peruse the Constitution and see the part where it lists RIFs as one of the things that has to happen.

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I haven’t found it. It’s been a little while since I looked check again right after this meeting, but I guess it, it’s not there. So I mean, it’s absurd, right? This is obviously illegal. There’s a reason it’s never been the case before. And actually one of my favorite parts about the OPM guidance is the OPM guidance says something like OMB has told us, has informed us, which I view as somebody at OPM being like, this makes no sense, but OMB said it, so we’ll just say the factual truth that OMB has said this to us, and then we don’t have to actually back up standard. That is, I don’t know if OPM, if you asked a person on the record, I doubt that they would say that, but it is an interesting way that OPM has formulated it in their FAQs that OM B has informed us that.

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So anyway, so that’s the basic thing on RIFs. So lemme just talk a little bit about the flexibilities that administration does have during that. So there are a number of flexibilities in terms of the exceptions that I talked about previously. So where some things are obviously absurd and outside the bounds, some aren’t. And also change over time, meaning that operating program X on day one might be required to prevent imminent threat or it might not, and then on day 10 it might be different. And some of that is a judgment call and a judgment call that the administration, any administration can make, and administrations have made different ones. Most shutdowns have looked broadly similar, but there are real differences here. Second is how you use available funding. So let’s say you have funding in an account that can be a hundred million dollars that can be used for A, B or C, and A has been shut down, or A and B have been shut down.

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You can choose how you use that a hundred million dollars. You could use it to keep operating A, B, and C. You could decide that you want to wait until later in the year and then those programs would shut down. These are all perfectly legal justifications determinations that are made. So there is some flexibility here, but the underlying problem is yes, you can make a shutdown more or less painful, but at its bottom, shutdowns are just painful. There’s only so much you can change about the fact that the government does a lot of things that people depend on, and when it shuts down, when there’s no money for huge parts of it, that’s a real issue. And so while again, on the margins, there’s some impact, and if it’s helpful in the 2018, the Trump administration made this big push about how they were going to make it less painful and they couldn’t believe that prior administrations had done all these things and we’re going to show you that a shutdown isn’t that bad.

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It didn’t really work. I mean, they did do some things. Some things that GAO, the government accountability Office determined were illegal. Other things that were legal, but were probably not like sound management. So diverting long-term funds to fill a short-term gap operating the parks. If folks remember they operated the parks with the skeleton staff, which no surprise led to damage to the parks trash everywhere, lots of sanitation issues. So you can make poor management decisions, but you can make those. But at the end of the day, it was still very painful and they ended up, all of their efforts were for Naugh in the sense of putting them in a position where it was sustainable over time, even though actually that was the longest shutdown that we had. So I think that’s just important to remember when you hear this stuff. So I’ll stop there. I covered a lot of the legal framework, but welcome any questions that folks have in general about the shutdown. Also, I’m happy to talk a little bit about sort of the context that has led to this shutdown, including what we’re seeing around impoundments and rescissions and the challenge that poses for Congress in terms of reaching a deal. But anyway, happy to take your all

Cady Stanton | Tax Notes (00:19:02):

Questions. Hi, I’m Cady Stanton. I’m a Capitol Hill reporter for Tax Notes. So watching the shutdown closely for impacts on the IRS among the other things. But I guess my question for you, especially as someone who knows so much about shutdowns and has seen a good number of them, this is my first covering as a journalist and there’s a lot going on simultaneously, like you’re talking about the effort for reps, the cuts by OMB that seem to be relatively politically targeted to certain districts, and then what seems to be patch up violations on government websites and changing people’s out of office emails that are all those different things. What is either the most jarring or alarming or new to you among those things or anything else that’s going on that’s different than 20 19, 20 13, et cetera?

Sam Berger/Center on Budget and Policy Priorities (00:19:54):

Yeah, that’s a great question. So, so far, and I really want to emphasize the so far, I don’t know if I came in Monday or Tuesday to say the same thing, where actually what we’re seeing is the shutdown qua shutdown, the actual things related to the shutdown have proceeded relatively normally with the exception of the banner ads that have a picture of Chuck Schumer with a mean mustache or whatever. They’re drawing on that kind of absurd stuff, which is truly absurd. I’m happy to get the amount of time and effort that went into making sure that a message was crafted that didn’t violate the Hatch Act, but accurately conveyed what was happening to her shutdown was extensive in prior administrations, and the red banner ad, that’s whatever the bizarre statement is made is inconsistent and Hatch Act violations are important. I just think as a practical matter right now, there are lots of Hatch Act violations.

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This just happens to be another set, but the way the actual shutdown is being conducted is relatively consistent as far as I can tell us today. The funding cuts that you’re talking about are funding cuts for money that’s unrelated to the shutdown. Sometimes they have this weird claim that they’re like, oh, we had to do an emergency civil rights review of this funding, and that’s what’s calling. But basically what they’re doing is they’re cutting mandatory funding. Remember funding that’s not impacted. Same thing with these RIFs. These RIFs have nothing to do with shutdown, and the risks have already happened. Even the risks that will occur, even if they claim it, they’re not really related to it. And what’s interesting about this is these are the exact problems that have led us in part to the shutdown, which is an inability of the administration to hold its end up on a deal.

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That’s a big, big problem. So if you look at what’s happened in 2025, they’ve used the first. So appropriations bills 60 votes in the Senate means for all practical and purposes, they’re always bipartisan. What this administration has done, there’s been sort of three things that has done that undermine that deal. First, partisan rescission, this is working with Congress, so under the Impoundment Control Act. So when Nixon started impounding funds, courts all struck that down and people think that the Impoundment Control Act was why the Impoundment Control Act had been passed. Yet they struck them down because if you have a law that says you got to spend X and someone says, I’m not going to spend X, then courts say, no, you have to spend X. What the Impoundment Control Act did was create a fast track procedure for presidents to ask Congress to change funding levels, which is the way you have to do it under the Constitution, and including creating a fast track way in the Senate to consider those proposals.

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Up until this year, that process had never been used in a partisan way, meaning that had never been used with a partisan vote to break a deal struck with a bipartisan majority, but that happened. It happened for a small set of funding, but that’s a really big deal, right? Because you can’t really strike a deal with somebody like this is a great deal, but also I’ll come back and change any part of the deal I want at any time, and you don’t have a say in it. Second thing is the so-called pocket rescissions. So pocket rescissions are any illegal, unconstitutional, unilateral reduction of funding. The claim such as it is, is that under the Impoundment Control Act, what the I Empowerment Control Act says is when you make a proposal to rescind funding, if we don’t do any, if Congress takes no action in 45 days, you have to spend the money.

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Then it also says nothing in the Impoundment Control Act changes your requirements under the law itself, which means that if you had to spend the money sooner than 45 days under the law, then you’d have to spend it. But imagine that you had a lot of money for a 4th of July party and you went in February and you said, I want to rescind the money for the 4th of July party. Congress doesn’t act within 45 days, even though if you were normally planning your 4th of July party, you could maybe start it in May. Now under the law you have to start mid-March. Someone can check me on 45 days from February, right? But it’s basically additional requirement on the administration. What Russ Vaught has claimed is that actually it’s a secret back doorway to impound all the funding in a unilateral manner. And for those of you that follow the court, you’ll know that generally speaking, the court has said has been particularly concerned about people finding vast secret powers that have never been used, whether that will apply to this administration open question.

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But certainly from a legal point, it’s bunk. It doesn’t make any sense because their claim is what they can do is just take this money. If they wait till last 45 days, they propose it for rescission. They sit on it regardless of what Congress does, and then the money just disappears, just goes away. It’s also unconstitutional. How do we know that? Well, because Congress tried to pass something called the line item Veto Act for Bill Clinton, and basically it said that the president could go in and cross out little parts of the budget within, I think it was a 10 day window, 14 day window. The court said, you can’t do that. Why? Because if you’re going to change the law, you have to go through the whole process of changing a law. This is that on steroids, because that was a time limited thing that had to happen on a budget that was just passed.

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This says that if only you’re willing to wait to send up your request into the last 45 days of the fiscal year, which again is absurd to think that’s even a challenge for you because you don’t want to spend the money at all. You’re willing to wait until the ends of time send this up, then you can rescind as much money as you want. The last thing is these illegal funding freezes impoundments. This is basically the things I’m sure you all have seen the administration just sitting on money. So the problem with all of these things is how do you strike a deal if the other side is not going to follow it? And that is an underlying tension that we’re seeing playing out in addition to the fight around healthcare funding. And if you look at the Democratic CR that was put forward, the short term cr, it restored healthcare funding, but also took a number of steps along these lines along partisan rescissions, so-called pocket rescissions and some steps around empowerment, which if you’re interested, I’m happy to talk about more, but I think that’s sort of a broader context to understand here. Sorry,

Speaker 4 (00:26:07):

I’m maybe asking you to read to loose here, and it’s not something that you are interested in doing and weighing in the politics of it. But one thing I’m interested in but is by a how quickly you think Democrats are going to cave to basically just saying, we’ll take those A subsidies as long as you’re going to extend them, and then the rest of RC can go to hell, basically. I’m just kind of curious whether any of that you are kind of looking at a person that’s followed a CA subsidies and the fight Medicaid very closely. It’s just something that help people just like, do you know what? I think that’s going to be it. We’re going to take that and tell with everything else, including the public decisions, et cetera.

Sam Berger/Center on Budget and Policy Priorities (00:26:45):

Yeah, that’s a great question. So the first thing I would say, and you all are probably experiencing this in real time, is these things are very fluid, much more fluid even than normal debates. So when you’re talking about the reconciliation bill, generally speaking, people’s reconciliation bills pass, it might change a little, but it’s a pretty, shutdowns have a much more fluid feel to them because everything’s unsettled. People have different senses of what’s the clock that’s moving them to take action, and that clock then changes what people think as the acceptable deal space over time. And so it can be very hard to track. I will say what we’ve seen over the first few days, it’s unclear what that impact will be, by which I mean, Russ Vaught literally is listing states that are impacted. He might as well just highlight them in blue. He’s not being subtle.

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Sometimes you talk about administrations, you got to look at the subtext with these guys. It’s all caps text. It’s not very hard to follow. And so the question then becomes, as you keep seeing these sorts of things, which are the very things that are in part leading to the challenge of striking a deal, how does that change people’s view of whether you can then strike a deal without trying to stop them going forward? Take the RIFs if they move forward with wide scale RIFs, can you pass a full year bill that doesn’t undo these RIFs knowing that they’ve just said that they want to just fire everyone? I don’t know. That’s a real challenge. And I think the unpredictability and the kind of brazen violations of the law by the administration make it a little bit hard to compare these to prior shutdowns. Even if you look at the ways in which they violated the law during the last shutdown, those were pretty narrow and focused. They were basically pushing beyond the bounds of the exceptions that I talked about, but they weren’t trying to fire everybody in a way that was illegal or things of that nature. And so it sort of stayed within the constraints that you would imagine. But this one is sort of all beyond, which just makes it hard to say where people will be. So that’s not a great answer, but I think that at least captures my sense of the fluctuating politics as they were.

Speaker 5 (00:29:08):

Two questions. One, what precedent do the sets for future administrations and how shutdowns play out with what they’re doing? And I guess that’s also another question of with the Supreme Court and saying that things aren’t, he has authority to not, things aren’t within his authority. He can do things that

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It kind of gets that legal pass. What is that going to set up for future administrations? And then the other question is, because we don’t know how long this is going to last and departments have to change their plans regardless of what comes out of OMB with future RIFs, are they required to keep people informed about how their departments rapidly changing their structure as the shutdown goes on? Because I know for instance, I think DHS took down their plan yesterday, and I guess that’s a thing they do because they’re just conflict changing things. Do they have to keep the public

Sam Berger/Center on Budget and Policy Priorities (00:30:10):

Informed? Yeah. Okay. A lot of great questions here. So the first one is, what precedent does this set for future shutdowns? I think there are two things I would say. So one question is how it resolves itself that will tell us a lot about at least a set of precedent. I don’t think that this will set though much of a precedent for any responsible administration, and I mean a responsible administration of either party, just because these kinds of things. This is such a bizarre and untethered approach to a shutdown, by which I mean real people are going to be hurt when you RIF a whole bunch of people that operate a program that helps people and they don’t do it anymore, that hurts people. There’s a reason that you don’t see Republicans in Congress being really excited about the specific cuts. They would never do these cuts because they hurt people.

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It’s like a level of a lack of responsibility that I think administrations of both parties wouldn’t take. I mean, there’s also just think about lets you actually want to run the government in order to help people and have a functioning society. You don’t tell everyone that you’re going to fire them, and then 10 days day you’re like, oops, sorry, everyone come back and let’s all work hard together. Does no one run a business that way? And so any administration that’s going to sort of have as its goal of functioning society isn’t going to take this as a precedent, I don’t think. But how it resolves itself will have some measure for future administrations that don’t have that goal, that have that kind of unpredictability or lack of care of the impact of their actions on people. So for most administrations, it won’t matter For irresponsible administrations, how this resolves probably will have some play. The courts is an interesting question to date. So as somebody that was in the Biden administration and was working on COVID, basically the court had real concerns with putting requirements on people related to, for example, COVID vaccinations, federal employees.

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It is interesting to observe that if you simply wanted to fire everyone, apparently that would’ve been totally okay and challenging to understand the consistency between those two views. But I welcome you to ask experts in the field to identify consistency that they observe. But I think that generally speaking, the court being this open to executive power, I think will have ramifications assuming that the court maintains a level of consistency that a court should, meaning that the views of a court should not change depending on the political party of the administration that is exercising the powers. This is a significant expansion of executive authority. I mean, I think if you talk to scholars who take a bigger view, this is in one sense, this direction, executive power going up is pretty consistent. I think the extent of that power going up here is pretty many orders of magnitude beyond what we’ve seen during prior administrations. But I think it’ll be a question for the next administration, the extent to which they utilize some of these powers. And what we’ve tended to see is that when the executive branch is given a power, even if an executive of a different party comes into play, they end up at least to some extent, exercising those same powers.

Speaker 6 (00:34:03):

I think that’s one question. I have all this cover, the White House, and I’m just curious what signs we should be keeping an eye out for and how this government shut out impacts the everyday buildings in the White House. Obviously we’re seeing how lower press in the White House, a lot of regulars have been on leave. I assume I heard, I don’t know if it’s true, the advanced staff, which helps plan ahead. A lot of the president’s trips day trips have also been broadly because they’re not deemed essential. I’m just curious what we should be keeping an eye out for in these coming weeks. And one example to use at the end of the month, Trump’s supposed to travel to Asia for apac. Could we see those trips be delayed because of the shutdown? Just because we’ll just say it’s not possible.

Sam Berger/Center on Budget and Policy Priorities (00:34:52):

Yeah, you could see it. I would be surprised. I mean, I think when you’re looking at White House activities, the things that continue and don’t continue are probably driven more by political considerations and framing considerations. Then legal considerations, and I don’t actually in this case mean that necessarily in a negative way, which is to say that there are a number of things like when you’re talking about the White House itself, there’s a higher number of things that constitute presence, constitutional duties, like those sorts of things. And you also have a higher number of staff that are there that are able to relatively say staff, but it’s fewer people overall,

(00:35:39):

Which is just to say that they have, I think, probably more flexibility on some of these things. And so if a trip is pulled down, certainly possible that there’s literally no way that they could justify the trip, but probably it signals that they want to, for some reason, show the impact of the shutdown stopping a trip. But I don’t think you’re going to see as much. The impact doesn’t really come from staff in the White House, by which I mean if they need more people to do stuff, they’ll bring them back in which you actually, you walk around, go across the hall to EEOB and walk around and see how frazzled all the OMB people look, but they’re the ones that are actually tracking all of the various programs. And so what happens in a shutdown is for the first few days, there isn’t necessarily as much of an impact that’s felt. There’s some measure of impact, but things can continue a little bit. Everyone’s sort of focusing on the shutting down itself. Then over time, more and more things start to break, but it’s not really so much enormous program. So social security will keep operating fine unless there’s some effort, inappropriate effort to undermine it. But it’s things you never think about, like permitting in X, Y, and Z national forest that’s critical to some kind of industry or activity that people really care about.

(00:37:03):

Alaska fishermen need some sort of licensing. That’s the kind of stuff that starts breaking down in little pockets that drives a tremendous amount of attention and energy to figure out what to do if there’s anything to do. And then obviously if it’s Alaska, there are some folks that care a lot about that and some folks that can get an audience in the White House, but other things like that too. And that’s what keeps ratcheting up the pressure and time as well. So I think it’s probably less the stuff you’d see in the White House, qua White House, but if you look at the executive office of the president, it’s a lot of the stuff that ends up coming through O and B and given Russ VA’s engagement in the shutdown, we would assume that would continue in terms, and actually, I think he’s keeping on 85 or 90% of OMB staff a very significant number, which again means they’re doing a lot of stuff. So that’s a lot of where you start to see they’re the ones that are getting the information on stuff that’s breaking down, which they related to the White House, but say there.

Sophie Hills | The Christian Science Monitor (00:38:07):

Okay, sorry, it was Sophie. I’m with the Christian Science Monitor, and I guess this is pretty a general question right now, but I think it’s especially pertinent during the shutdown. But for you, coming from the policy shaping and implementation side of things, what the Trump administration in general seems to have this strategy at times of take action now battle it out in the courts

Kevin Johnson/NPF (00:38:33):

Later.

Sophie Hills | The Christian Science Monitor (00:38:34):

And so maybe they’ll say, no, actually you can’t fire all these people during a shutdown, but all those people will be fired. All those programs will be, I mean, it is not just as simple, it seems to me as putting people back in jobs because first of all, do they want to come back? But second of all the programs, partner organizations or whatever, who may now not want to begin that work again. So what kind of fallout are you anticipating generally, and does the solution there come from government or come from civil society

Sam Berger/Center on Budget and Policy Priorities (00:39:07):

Groups? Yeah, that’s a great question. So I’d say let’s start with the shutdown RIFs, which I think are their kind of own animal. Remember, in most of these cases you have a 60 day time clock. So if Congress cancels the R, nothing has happened from the point of view of the person, meaning they were continuing their accepted activity or they weren’t, Congress cancels it. I mean, obviously personally something happens to ’em and that they know that their agency was trying to fire them. But as a practical matter, it’s not like the other sorts of things where they pushed out the pushed out other workers out the door, and then it was hard to get them back months later when the court cases played out.

(00:39:54):

But I do think that this gets to a broader issue that has not received as much coverage, but I think is very important, which is the damage that is being done to the view of the executive branch as a reliable actor. And that actually plays out in a couple of different ways. If you think about on the international stage that we’re a country that will abide by the treaties that we sought, the international agreements, that is a lot of cache for us, that people trust us, they can strike a deal with us, we’re going to follow through on that deal. We generate a lot of goodwill from that. Huge challenges being brought to that understanding the idea that the executive branch is a trusted partner in engaging with Congress, as we talked about, that’s been wholly undermined by this set of steps, and that’s really one of the big issues that we’re seeing play out now in terms of the funding lapse, whether as a grantee, as a opposite side on a contract, the administration can be trusted.

(00:40:59):

It’s hard to say you could, right? They’re cutting contracts left and right, cutting grants left, and and as you all probably know, when you’re less trusted, people charge you a premium to work with you. Now, obviously if someone’s getting a grant from the government, that’s less of a case, but if they’re contracting to perform a service, they’re going to factor that in. And also relationship with the court. So there’s called a presumption of regularity, right? A sense that the government, when government lawyers come up and say something, it’s not like a private attorney that they have a responsibility to give. They’re going to follow the rules, they’re going to follow procedure. What they’re going to say is carefully checked, and they know that it’s true. And that hasn’t been happening in courts, and courts have been taking notice. That’s a big issue because that presumption really helps us in things like criminal cases, civil suits, a whole range of things that the federal government does.

(00:41:48):

If you think about this credibility and you think about credibility that you all build up in your own careers ability with sources to trust that if you say something is off the record, it’s off the record, like that kind of stuff, you can build that up over a lifetime, and it takes about two seconds to set it all on fire. Once you’re the person who did it once, no one’s going to be like, oh, that’s probably just one time. I bet you’ll never do it again. Right? You’re just not trusted. This is credibility that our country has built up over generations painstakingly decision after decision, person after person acting with respect and trust, et cetera, and it’s being set on fire. And that has real consequences. It’ll have real consequences in a range of domains. And I don’t think that we fully understood yet in the middle of it what it’ll mean.

(00:42:32):

But that’s something that will persist beyond any one administration because again, people don’t think about it as just the administrations, the United States. And the United States is either a trusted partner, the executive branch is either a trusted partner. It isn’t once everyone has to come up with a plan for what if the United States government increases tariffs on us by a hundred percent, that plan has been developed. Those people have thought it through. They’ve considered the US as a threat to their economy. The things that they’re trying to do, they can’t just go back. Same way once large contractors or others have to go, well, what if the federal government just doesn’t deliver on its money? What is the context of the content of this contract that I signed? Because up until now, the government does, and there are actually state and local governments that don’t deliver on that basically don’t have funding or end up having to not follow through with contractors.

(00:43:21):

That’s a real issue for them going forward. There are countries, as you all know, that have that issue. That’s a real issue for them going forward. That wasn’t the United States. And I’m certainly not saying that the United States is going to be position of a country that is running a huge, huge deficit, but I mean, a country that’s unable to pay its bills, but there are real consequences for this stuff. And I think that over time we’re going to see this, the ramifications more and more, and you all will probably be living with and reporting on those ramifications over the context of your career, not something you can just put back in the box. And definitely not the second time, one time, one four year, oh, flash in the plan, second time and the level of damage we’re seeing. I just don’t think that that’s going to be something that will be unwound very easily.

Hailey Bullis | Washington Examiner (00:44:10):

Hi, I’m Hailey Bullis with the Washington Examiner. Kind of going back to some of these cuts we’re seeing beyond new lifts, but these energy programs, the New York City programs tunnels, I’m just curious, based on your experience, have we ever seen such targeted cuts in your experience? I mean, beyond that, do you think these will stand up? If the legal challenges?

Sam Berger/Center on Budget and Policy Priorities (00:44:38):

Yeah. Okay. These are great questions. No, and I think that even I’ll be, I folks are, I think that obviously President Trump campaigned on a basically said, I’m going to go after people I don’t like, and so many words. And so I think people are not surprised that that’s then happening. But I do think actually people are surprised by how brazen it’s been. I mean, I think the Russ Vaught tweet where he literally lists out the states, that’s wild, right? So no, I don’t think that this level of, I think that certainly this level of empowerment we haven’t seen, well even just step back and saying administrations making, let’s say that administration is acting within the law. No, this kind of level of targeting is not something that you would ever see C and so what’s going to happen in the courts on this? So that’s an interesting question.

(00:45:35):

I think that it’s so a quote by an employment attorney two days ago, which said, I am no longer in the business of telling you what a court will do. I can explain to you what the law says and how case law should be applied in it, but I cannot guarantee and what should happen. But we no longer live in that world. I think that is, I don’t have it exactly right, but that was certainly the sentiment. I think that this is a challenging circumstance for understanding, I think at a district court level, any district court’s going to reverse these. I mean, you have to get a little bit more into the details. Again, these actually aren’t related to the shutdown, and whether they get restarted is another thing. Do they actually persist? I think if they were to persist, yeah. I mean, you’d also see significant issues though, because it’s not like these would just impact a couple members of Congress. There are a whole bunch of Republicans that live in New York and New Jersey. This is not, so just to say that, I don’t know if these will necessarily, but if you look at the energy thing, the energy cuts look like things that were already happening that they just packaged up to announce for the shutdown. So those will be challenged. Sometimes they’ve been reversed. I think at a district court level, you would anticipate they would be, but there’s a real question as you move up to the Supreme Court.

(00:46:58):

The Supreme Court has been a pretty significant outlier from other judges in terms of the way that it is treated, these issues. And so it’s a little bit hard to know, but I think all these things don’t also make it to the Supreme Court. So that’s like, and the district court, they’ve tended to make sure that say that people have to follow the law. If they have to spend money, they have to spend money.

Mia McCarthy | Politico (00:47:24):

Hi, Mia McCarthy. I cover Commerce Politico. I wanted to, and maybe this is also to you don’t really want Wade on, but do you think Democrats in general are implementing the shutdown more because of the empowerment stuff and actually the healthcare one and two, I guess? I know there’s some senators who are really trying to, it seems like one of the things being floated is talking to other appropriators about making a deal of voting against futur decisions, packages, stuff like that. I guess, do you see that as being an actual viable option in long-term of stopping these kind of illegal perhaps?

Sam Berger/Center on Budget and Policy Priorities (00:48:05):

Yeah, that is a great question. I don’t think that I’m in a position to tell you what the caucus actually thinks, but I think certainly if you think about the people that are going to be in the room when the deal is made, some of those people are going to be appropriators, and that’s very clear from their public statements. And also just an understanding. They don’t like any of this. Probably the thing that people like the least is these illegal pocket rescissions, because cutting them out entirely. Even the partisan Sion that gets sent up, they take a vote on it. I think they, even Republicans did not like how it went. Any of you all, anyone covered it. They had a whole bunch of questions. There’s not the amount of information that’s normally provided. They were very concerned, and that’s why Collins pushed back on aspects of it and it got modified.

(00:48:54):

But I think the unilateral Sion is a really big deal, essentially just cutting Congress out entirely. And you’ve seen in the bipartisan negotiated bills, some provisions in this space suggesting that there is some bipartisan trust. What happens when the people get in a room to make a deal? That I can’t say, but I do think that this is something appropriators care a lot about. I mean, not just appropriators, but certainly appropriators. And they tend to be involved in the negotiations around these funding bills. The resolution. And then, sorry, your second question. The one was about what’s motivating it, and then what was your second question? I’m so sorry.

Mia McCarthy | Politico (00:49:33):

Oh, I guess obviously they’re trying to push back on what the,

Sam Berger/Center on Budget and Policy Priorities (00:49:37):

Oh, can they do it? Obviously

Mia McCarthy | Politico (00:49:40):

We’ve seen the White House back and forth do things.

Sam Berger/Center on Budget and Policy Priorities (00:49:44):

Yeah, that’s a great question. Yeah. So I do think that there are things that can at least are, that are meaningful with the caveat. I don’t know what the administration’s going to do, but currently a lot of the back and forth, the way that conservative judges are trying to justify what the administration is doing is by saying, relying on process and saying that these aren’t the right people to sue, or they should need to sue over here. Some of the steps that they’re proposing around the Impoundment Control Act would eliminate that justification by basically pausing the provisions of the Impoundment Control Act that are being used for these rescissions. That would’ve a real effect. I don’t know that they won’t come up with a new theory, but every new theory is more and more ridiculous. And at a certain point, you would assume that the Supreme Court would say no.

(00:50:43):

Although I guess see my prior quote from the other guy, but I think there are some real things. And then things like limiting O B’s apportionment authority. So the apportionment authority is, so OB has this authority. Apportionment authority is basically, they dole out money over time. And the reason they got this authority is in the olden days, like real olden days, think Department of War, olden days, congressman give money, Congress would give money and the Navy would come back and they’d be like, Hey, we have three months left. We spent all our money. So should the Navy shut down or are you going to give us more money? And obviously they gave them more money, but this is absurd. I’m making a joke about the Navy. Please don’t everyone ping the good reputation. But agents have really come back and be like, we’re out of money.

(00:51:26):

Give us more money. And so then they said, OMB, you basically dole out money over time. And the problem is, is that Congress can’t do the doling out because different programs, so again, like my 4th of July party thing, if you gave them that money every quarter, that would be pretty silly because after 4th of July, they’re not spending any of the money anymore. I mean, maybe they’re paying contractors a little, but you get it. So they said OMB, basically like Bureau of Budget, but then OMB give out this money in a way that makes sure that by the end of the year they spent all the money, but no more than the money. Make sure that this works. What we’ve seen unfortunately, under this administration is an abuse of that authority to not give out money at all or to put on additional requirements that are inconsistent of what Congress said.

(00:52:07):

And so if you look at the places where you’ve seen funding cuts, and if you remember the story about NIH where there was a day, I think it might’ve been a post story, but I don’t want to say who you all might know, but there was basically a story that ran that was like, Hey, NIH research dollars can’t go out. And then the next day they could go out. That was an apportionment, a footnote on an apportionment that basically said, you can’t spend this money. The story happens, OMB removed the footnote, and then the money flows. So what you see in the Democratic CR is a limitation on O B’s apportionment authority. That’s not a full fix because an agency can still sit on money. But what’s interesting, I’ll just offer to you all, if you’re thinking about your reporting, it’s interesting that OMB felt the need to use its apportionment authority.

(00:52:55):

OMB only uses, its a apportion of authority when it’s having a fight with an agency. If they call up the Department of Entry and everyone agrees this money isn’t going out the door, you don’t need to do anything, why would you write it down on a sheet of paper? You only write it down on a sheet of paper when you’re worried people aren’t going to do it. So that raises a question about, and I think there is this very interesting tension between some of the folks that are actually at these agencies. So it’s easy to say, we don’t need a Department of Energy, or We don’t need a Department of Transportation, or it’s harder when you’re there and people are like, these are the people that are being impacted by this program. You need to actually run it. As you saw that with some of the Doge personnel cuts with cabinet secretaries pushing back. Again, that is very much reading the tea leaves, but something is happening that OMB feels a need to use its authority to keep agencies from being able to spend some of this money, which raises a question as to why we don’t know exactly, but maybe you all will find out and then I’ll read about it in your respective, but that is just an interesting dynamic that we’ve already seen play out. We’ll see if we’ll continue to play out.

Grant Schwab | The Detroit News (00:54:00):

Yeah. I’m Grant Schwab, so I’m a Washington correspondent for Michigan Paper. So I think a lot about state impacts. And you said in one of your comments earlier that it’ll be a while before things start to really break. Can you talk a little more about that focus on the states, let’s say three weeks from now or a month from now, whatever time horizon you think of as things really breaking, when will we start to see that happen in all states, not just the ones that

Sam Berger/Center on Budget and Policy Priorities (00:54:32):

Yeah. That are Target

Grant Schwab | The Detroit News (00:54:33):

Circled?

Sam Berger/Center on Budget and Policy Priorities (00:54:34):

Yeah, yeah, yeah. So this is all, it’s a little bit, I would take this as a heavy caveat of a rough way to think about it. Not in any way like a specific like, oh, Sam Circle the day on the calendar. But as you start to out 1.5, two weeks, you start to see some things run out of money, and then once they start running out of money, depending on the nature of the program, that causes a much more significant impact. Usually in your three week-ish period, you start seeing federal employees who aren’t getting their paychecks, that starts to have a bunch of compounding effects.

(00:55:20):

And then beyond that, we’re pretty much in an unknown zone. I don’t know if the old maps where they would be like there would be dragons, they just draw ’em. And that’s sort of what it’s like, right? We don’t know. We haven’t gone beyond that. It’s sort of hard to imagine if the administration follows law, we could get much beyond that. When I say they follow the law, basically in the absence of them actually sending dollars to people, it is just not going to work. None of the people need to show up are going to be able to show up. So things snowball very quickly. What this feels like a week from today is going to be very different, assuming that we’re still in the shutdown is going to feel very different even a week and then a week and a half is going to feel different than a week, et cetera.

(00:56:03):

So you can’t really predict exactly. So I not feel ever confident telling you what’s going to break down. They feel very confident saying that things will start to break down because there’s just so many different things that are happening. And the reason it’s a little hard to tell is there are questions about carry over balance. Did somebody get some mandatory funding for a program two years ago? That stuff changes from program to program, but the overarching fact remains that there isn’t funding for a vast majority of things that government does. People depend on a whole bunch of things that the government does. And so those two things combined mean that it’s going to be bad.

Grant Schwab | The Detroit News (00:56:41):

Understanding your caveat, but just sort of trying to get myself oriented of what we might start to see or what to look for. Can you give, I don’t even know, a ballpark or this is the kind of thing that does it come down to?

Sam Berger/Center on Budget and Policy Priorities (00:56:55):

So the thing, yeah, I get what you’re saying. So I think big things that are issues are stuff that help vulnerable people. And the reason that that’s one of the biggest issues is because they don’t have any give. So even a small business, some small businesses, so a small business is counting on a loan and that loan can’t come through for an extra two weeks. That’s not great. And some small businesses have real issues, but there’s some give there and obviously a larger business they can then, again, it’s not great, but they can do it. But a person that needs WIC or snap, if they’re not getting these sorts of benefits when stuff starts running out there, that’s a real issue. States can step into the fore for some of these things, but only for so long, again, because they have to be putting up the money.

(00:57:46):

So I think that’s one place to look, and then that would probably, that’s the one of the places. But then also just there are really idiosyncratic things. So think about something that’s incredibly important to your state that people might not even think about. Its relationship with the government, but states that have a lot of federal land need access to it or sometimes they need permits or other sorts of things, and that can’t happen. One of the things that the Trump administration did in the last one was oil and gas permits. They basically trying to make sure that none of that stuff got slowed and so they had to move money around. I dunno what that money looks like today or the kinds of choices that they would make. And that would seem like an odd thing for them to choose to make as painful as possible, given again, the political makeup of the state and the way in which they’ve said that they’re choosing stuff. But there are similar things in all sorts of states. And so again, it’ll be somewhat idiosyncratic. But I do think the groups that are serving vulnerable people, vulnerable people themselves, they’ll probably be some of the first to raise a hand to show that say that things are going bad. And sadly, they’ll be impacted the most in the absence of state or local government stepping into float funding until the shutdown ends.

Grant Schwab | The Detroit News (00:59:07):

And I’m sorry, I’m pressed more on this, but just the follow up. Even beyond vulnerable people. Vulnerable people, let’s say the classic two child household making, I don’t know, upper middle class, I’m going to put a number on it. When will people who are doing fine start to see all of a sudden this part of my daily life that I wasn’t thinking about ever is broken. I know municipal government handles a lot of those things, right? Trash pickup. The feds aren’t doing trash pickup, but I’m thinking something that mundane and banal that all of a sudden might not be there that I haven’t even thought of.

Sam Berger/Center on Budget and Policy Priorities (00:59:49):

So that one is hard because it’ll be idiosyncratic for, so maybe the place you work has a government contract that doesn’t maybe be one of your children is getting married on federal property and they can’t have their wedding. But it’s like each of these things sort of seem very idiosyncratic, but when you multiply it across everything government does, it ends up hitting a lot of different folks. Maybe there are issues around plane flights because while air traffic controllers are accepted, they’re like staffing issues related to the shutdown, people taking vacation or other sorts of things. There’s all sorts of things that start to break down in a lot of different ways. So for feds, it’s pretty easy to track because it’s a paycheck for everybody else. It’ll be a lot of things that, at least in my experience previously, each individual one feels like it can’t be, it’s only affecting a small number of people, but it’s happening across a million things. And so it’s happening affecting lots and lots of people. And that’s sort of what you get a lot of different pockets. And that’s what makes managing it so challenging because it’s not like, Hey, we have this one problem. I mean, there are some big problems. It’s like, Hey, you have this big problem and then you have 40,000 small problems and there’s only so much you can do to address each one of those.

(01:01:07):

Speaker 5 (01:01:07):

I guess what, is there anything that you’re seeing incorrectly reported on when it comes to the shutdown coverage? Because obviously everyone’s writing about it, there’s so much news surrounding it. Is there any things to be careful about or things you’re seeing that are wrong or misguided that we can,

Sam Berger/Center on Budget and Policy Priorities (01:01:23):

I think the biggest thing that is helpful this time around is distinguishing between things that are because of the shutdown and things that are being done separate from the shutdown in order to advance a political narrative. And I’ll say in this case, that’s basically only the executive branch, since they’re the only ones that can do that, meaning Congress doesn’t. Congress has their own people and no one’s going to send home their own staff to prove a point. But I do think you’ve seen coverage of what’s happening with the DOT funds, the DOE funds, the PTO RIF and talk about as if they’re shutdown related, and they are in the sense that they are being lifted up on Twitter or X or whatever we’re calling it, but they’re being lifted up because the shutdown is happening, but they’re unrelated to the shutdown. And I think making that point, a lot of these RIFs that we see could very well be RIFs they were already planning to do.

(01:02:26):

I think trying to distinguish what is because of the shutdown and what is basically an effort to, but it’s not even what’s an issue to inflict maximal pain, but what is being done separate from the shutdown to inflict pain, I think is actually really important for people to separate. Because one of the big issues is you say, I’m going to do this unless you end the shutdown, but if the thing you’re doing is unrelated to the shutdown, then you could just do it the day after the shutdown, and everyone on the hill is going to know that because they know the legal issues. And so that creates a huge thing. And so helping people understand that actually some of these threats make it harder to, well, regardless of even how you respond to a threat, make it harder because they’re making the exact point that there has to be some sort of guardrails because they’re claiming an authority to do these illegal things and they will claim that same authority a week from now, two weeks from now, a month from now. I do think it’s actually a really useful dynamic because in the absence it can be hard to understand how people might respond to some of what, meaning people on the hill might respond to what they’re seeing from the administration.

Kevin Johnson/NPF (01:03:29):

I promise Sam, it would be an hour went by fast, and I think now you all know why he’s quoted so widely at this crazy time. So we’ll have him back in a week.

Sam Berger/Center on Budget and Policy Priorities (01:03:42):

Yeah, exactly. And then again in a week and a half, and then no, no, hopefully not. Hopefully you all don’t need to talk to me after. No, but thank you.