Government shutdownHow DHS copes with shutdown requirements
In anticipation of a government shutdown, DHS, on 27 September 2013, has issued a 42-page document, titled “Procedures Relating to a Federal Funding Hiatus,” which details which of DHS functions and activities would cease during what the document calls a “federal funding hiatus,” and which functions and activities are exempt, or “excepted,” and would thus continue. In general, mission-essential and mission-critical functions of DHS will continue during the funding hiatus. DHS defines essential functions as “a limited set of mission-essential or mission-critical functions that must be performed to provide continuity of operations.” DHS defines mission-critical personnel as “those employees occupying positions and performing functions that must be maintained under all circumstances to ensure the safety and security of the nation and its citizens.”
The Anti-Deficiency Act (ADA) codifies the Constitutional requirement that “No Money shall be drawn from the Treasury, but in consequence of appropriations made by Law.”
The Senate has approved a continuing resolution (CR) to fund the federal government, but the House has so far not voted on one. This means that Congress has not made the required appropriations to allow the government, with a few exceptions, to operate.
Federal officials are prohibited from entering into contracts, incurring obligations, or performing activities without having a current appropriation. ADA further restricts acceptance of voluntary services or personal services beyond authorized levels “except for emergencies involving the safety of human life or the protection of property.”
As a result, only activities that qualify as exempt may continue to operate during a lapse in appropriations.
DHS, on 27 September 2013, has issued a 42-page document, titled Procedures Relating to a Federal Funding Hiatus, which details which of DHS functions and activities would cease during what the document calls a “federal funding hiatus,” and which functions and activities are exempt, or “excepted,” and would thus continue.
The DHS document offers a guideline for exempt departmental functions.
Mission-essential, mission-critical functions
In general, mission-essential and mission-critical functions of DHS will continue during the funding hiatus.
DHS defines essential functions as “a limited set of mission-essential or mission-critical functions that must be performed to provide continuity of operations.” The document notes that “each DHS component has identified and defined its mission-essential functions separately.”
DHS defines mission-critical personnel as “those employees occupying positions and performing functions that must be maintained under all circumstances to ensure the safety and security of the nation and its citizens.” The document adds: “The critical nature of these positions is inherent in the position description (e.g., securing the nation’s borders, protecting the nation’s transportation system, etc.),” and “these employees must report for duty regardless of the emergency or operating status.”
The document stresses that certain functions and activities which will be permitted to continue are “exempt” under an exception which allows services to continue in order “to protect human life or property or some reasonable likelihood that the safety of human life or protection of property would be compromised in some significant degree by the delay in the performance of the function in question.”
The document notes: “Specifically, the risk should be real, not hypothetical or speculative, and must be sufficiently imminent that delay is not permissible,” DHS said.
