Cutting Off Congress

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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6 Responses

  1. Ken Rhodes says:

    Generally, most government contracts warn the contractor that their work may be halted unilaterally by the Contracting Officer “for the convenience of the government.” So in the hierarchy of federal spending, a substantial amount of monthly expenses are for contracted items that could be cut off, at least temporarily, by the Contracting Officer issuing a Stop-Work order.

    The Executive Branch probably then has the authority to furlough workers of that Branch–i.e., anybody from low-paygrade Civil Servants up to and including Cabinet Secretaries. After all, their chain of command goes up to the Prez.

    Whether the Executive Branch can furlough workers of the Legislative and Judicial Branches might be questionable.

  2. Brett Bellmore says:

    Considering that half the members of Congress are millionaires, they’d be hard put to make a plausible claim of hardship.

    I don’t see a big problem with it, for that reason. So long as the cutoff wasn’t selective, as you point out.

  3. Joe says:

    “for that reason”

    Are the half that are millionaires supposed to give the other half aid, or what?

    I’m inclined to think a consistent rule that is not just limited to members of Congress is constitutional. If necessary, as with state immunity issues, the 14A provision can be deemed to override other concerns. OTOH, prudence at least might warrant this to be a last resort.

  4. Phil says:

    Such a move would violate the Anti-Deficiency Act – one cannot work for the government in a volunteer status, even temporarily. If you work, you must get paid.

    It could be argued it also violates the Impoundment Control Act: when Congress appropriates money for a particular use, the Executive does not have the option of not doing it.

  5. Brett Bellmore says:

    That’s kind of the point: When Congress orders the President to spend more money than they make available to him, every option involves violating a law. Might as well violate one dear to Congress, to motivate them.

  6. richard vinet says:

    Surprised no one has mentioned the 27th amendment relative to congressional pay.