Money Is There to Pay for It if It’s ‘Essential’

“No money shall be drawn from the Treasury, but in consequence of appropriations made by law”--the language of the Constitution seems absolute.

But, as is often the case, government lawyers have carved out enough wiggle-room to bypass that constitutional order, at least partly.

As of 12:01 a.m. EDT this morning, all “appropriations made by law” for the federal government had expired. But money will still be drawn from the federal Treasury to pay for “essential” services--everything from salaries for CIA spies to gasoline for border patrols.

How can that be?

According to White House attorneys, the President has “inherent authority” to take actions necessary to protect the safety and health of the public. And they say that authority includes the right to spend money--even if Congress has not appropriated any.

The authority to do so was asserted first by Benjamin R. Civiletti, President Jimmy Carter’s attorney general, in 1980.

Carter never had to use the power, but President Ronald Reagan did so, on three occasions--once in 1981, when Reagan vetoed a budget measure and left the government in limbo for a day, again in 1984, when a budget stalemate left the government without money for a few hours, and a third time in 1986, when another impasse disrupted government operations for half a day.

Over the last decade--a period that has seen repeated budget deadlocks and threats of shutdowns--each federal agency has developed its own list of what functions are considered “essential” and must keep working.

For everyone else, no work is allowed--even if employees volunteer to work without pay.

The reason, federal lawyers say, is that, even if the employees are not drawing a salary, they would still be using supplies, electricity, water, government office space--all of which can be paid for only out of appropriated funds.

Over the years, some constitutional experts have questioned whether the President really does have the “inherent” power that Civiletti asserted, but no one has challenged it in court.

Chances are, no one ever will.

The reason involves another constitutional rule--the “standing” to sue.

According to that rule, before a person can bring a case before a federal judge, he has to show an actual injury from the action he is seeking to challenge.

And the courts repeatedly have ruled that a taxpayer may not claim an injury simply by arguing that the government spent money it should not have spent.