The government shutdown now enters its tenth day. On Thursday morning, the Senate failed for the seventh time to reopen the government, meaning that 750,000 government employees will continue to be furloughed without pay, hundreds of thousands of essential personnel will work without pay, and 1.3 million active duty military personnel will remain on duty, wondering if they, too, will miss a paycheck on October 15. In addition, the issue of whether or not government personnel will receive back pay when the shutdown ends is still unanswered while Republican and Democratic leaders continue to play political football.
The Troop Pay Bill: Blocked in the House
Both Republican and Democratic leaders have teased the possibility of agreeing to a standalone troop pay bill that would allow military personnel to continue receiving pay during the shutdown.
Options to pay military personnel include Trump shifting available funds or pressing Republican leaders on Capitol Hill to put the standalone troop pay bill on the floor, according to one Republican official.
However, on Friday, the bill was blocked on the House floor by the GOP. Senate Minority Leader John Thune and House Speaker Mike Johnson both indicated that they had no plans to move anything other than the House-passed stopgap spending bill as a way to pay troops.
In a statement, Thune said,
"The White House has now, for 10 days, laid off doing anything in hopes that enough Senate Democrats would come to their senses. But now, now that we're getting these where people are going to start missing paychecks, this gets real."
Minutes after Thune released the following statement, White House Office of Management and Budget Director Russ Vought posted the following on X,
"The RIFs have begun."
This was a reference to the reductions in force that the White House has repeatedly threatened. The reductions in force are specifically related to the effort to pay military members next week, said a senior White House official.
What About Back Pay?
The debate over whether or not furloughed government personnel will receive back pay after the shutdown ends is still raging on. At the center of this debate is the Government Employee Fair Treatment Act (GEFTA) of 2019.
The GEFTA is a United States federal law that requires retroactive pay and leave accrual for federal employees affected by the furlough as a result of the 2018–19 federal government shutdown and any future lapses in appropriations.
Before diving into the key elements of the GEFTA, it’s important to understand two types of government workers: excepted or non-excepted employees.
Excepted Employees
During a government shutdown, essential federal employees, referred to as "excepted" personnel, are required to continue working without pay.
Their duties are deemed crucial for safeguarding life or property. This group includes individuals like Border Patrol agents, customs officers, TSA agents, air traffic controllers, active-duty military members, and emergency response personnel.
While they cannot use paid leave during this period, they are guaranteed to receive their back pay once their agencies are funded.
Conversely, other federal employees who are "exempt" from the shutdown, often due to their funding sources not relying on annual appropriations, continue to receive their regular pay and benefits.
Non-Excepted Employees
Before the 2019 passage of the Government Employee Fair Treatment Act (GEFTA), federal employees not deemed "excepted" faced furloughs without guaranteed back pay.
While not legally mandated, Congress historically ensured compensation for lost wages and accrued leave through legislation passed after each shutdown.
This retroactive pay and leave was typically included in the legislative package that ended the shutdown, such as the continuing resolution that funded the government after the January 2018 shutdown.
Doesn’t the GEFTA Still Apply?
As one furloughed IRS employee put it, “It says we get paid, in writing! This will be extremely helpful to the union when Trump tries not to pay us.”
Not so fast, Mr. Taxman.
Under the current administration, the Office of Management and Budget (OMB) has deleted from its guidance any reference to the 2019 GEFTA law or back pay for furloughed federal workers.
It appears as though the Trump administration will take a novel interpretation of the back pay law and argue it applied only to the 2019 shutdown, based on a press release that OMB sent to media outlets making that legal argument.
Ultimately, it will be difficult to argue that excepted employees should not receive back pay. Non-excepted employees remain at risk of not getting back pay if the OMB argument prevails.
What’s Next?
It looks like Republicans and Democrats will take their political football game into overtime. As of now, the government shutdown is on track to extend into next week. Congress remains deadlocked on a funding plan, and the Senate isn't scheduled to hold any votes until Tuesday of next week.
As of now, it appears very likely that military members will not be getting their next paychecks, which were scheduled to go out on Wednesday. House Democrats were not able to advance legislation today that would guarantee pay for US troops during the shutdown.
As of now, it seems that back pay is a largely separate issue that will require further legal interpretations of the 2019 GEFTA and, perhaps, a court ruling to resolve the issue.
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