Constitutional Law

As shutdown continues, more federal courts 'tell Congress to go to hell,' as blogging judge puts it

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Instructed to prepare for the possibility of an ongoing government shutdown if Congress doesn’t resolve a budget impasse and restore funding this week, a growing number of federal courts have taken a more aggressive approach.

By declaring all employees “essential,” court administrators are in a position to insist that workers stay on the job because, eventually, they must be paid under federal law, explains senior U.S. District Judge Richard Kopf of the District of Nebraska. And, in a recent post at Hercules and the umpire titled “Tell Congress to go to hell—all federal district court employees are essential,” he urges administrators to do just that.

“Given such an order, Congress would have two choices,” Kopf points out. “It could do nothing, in which event Congress loses its ability to destroy the judiciary be failing to pass a budget. Or, Congress could go batshit, and the judiciary and Congress could have it out.”

Among those who have set the stage for a potential showdown with the legislative branch are the New York City-based 2nd U.S. Circuit Court of Appeals and Chief Judge Alex Kozinski of the San Francisco-based 9th U.S. Circuit Court of Appeals, according to Courthouse News and the National Law Journal (sub. req.).

After a series of budget cuts in recent years, “We’re drowning,” said Chief U.S. District Judge Anne Conway of the Middle District of Florida. “We’re treading water to keep our heads up. There’s just nobody left.”

Her jurisdiction declared all employees essential Oct. 7. As of Friday, at least 24 of the 13 federal appeals courts and 94 federal district courts had made the same determination as of Oct. 11, the NLJ reports, although most have not yet addressed the issue.

In interviews with the Blog of Legal Times earlier this month, influential lawmakers from both sides of the aisle did not appear eager for a confrontation with the courts over the funding issue and the interpretation of the Antideficiency Act, which provides broad authority to continue with functions deemed essential.

However, as arbiters of legality, the courts have a special obligation to follow the law. In this spirit, Chief Judge Laurie Smith Camp of the District of Nebraska determined that court functions, not court employees, are essential, according to the NLJ.

“Even though we are extremely frustrated with the position that Congress has placed us in, we respect the fact that Congress enacts the laws,” she said. “It’s our job to uphold them and we will not be flouting the law.”

Meanwhile, although courts have remained open, there has been a significant slowdown in some cases, particularly on the civil side, because of the furloughing of some federal lawyers and requests for stays by the Department of Justice and U.S. Attorneys, the Associated Press reports.

Likewise, the shutdown has already had a significant adverse impact on court personnel, ABA President James R. Silkenat told the Federal Drive program of Federal News Radio.

“A court is just like any other institution,” he said. “You have maintenance people, you have electricians. How do you keep the lights on? How do you keep the air conditioning operating? All of those things are in play already, and courts have been trying to figure out, ‘Well, if we closed Tuesdays, is that enough to get us through the week? What if we don’t do maintenance on anything? What if we turn all the lights off in this wing of the building?’”

See also: “ABA President Silkenat condemns shutdown, says Congress should ‘end the scorched-earth tactics’” “Which federal court employees are essential? At least two courts say they all are” “Federal courts to stay open through at least Oct. 17, even if shutdown continues”

Reuters: “U.S. federal courts likely to stay open despite government shutdown”

Slate: “The Courthouse Is Closed”

Stamford Advocate: “Federal courts brace for shutdown impact”

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