The Lawfare Podcast Episode: Lawfare Daily: The Law of the Shutdown Date: October 3, 2025 Host: Molly Reynolds Guests: Nick Bednar, Sam Berger

Episode Overview

This episode examines the legal framework and evolving executive practices surrounding the current U.S. federal government shutdown. Molly Reynolds interviews Nick Bednar (University of Minnesota, Lawfare contributing editor) and Sam Berger (Center on Budget and Policy Priorities) about the interplay between appropriations laws, agency discretion, reductions in force (RIFs), personnel decisions, and the emerging trend of politicizing shutdown management to inflict or alleviate pain for political gain.

Key Discussion Points & Insights

1. Why Do Shutdowns Happen?

(02:08–03:57)

• Sam Berger explains that shutdowns arise due to the difference between mandatory vs. discretionary funding:
  • Mandatory funding: Rolls on automatically unless Congress changes the law.
  • Discretionary funding: Must be reauthorized annually via appropriations bills; if Congress fails, a shutdown occurs.
• Frequently, a continuing resolution is passed to buy time, but sometimes Congress fails to approve even this.

Quote:

"There are basically two ways that Congress provides funding ... What you see in a shutdown is an inability of Congress to provide that funding for the upcoming year."
—Sam Berger (02:33)

2. What Operations Continue During a Shutdown?

(03:57–06:31)

• Nick Bednar details the Anti-Deficiency Act and OLC (Office of Legal Counsel) memos governing exceptions:
  • Exemptions:
    1. Activities funded from non-annual appropriations (e.g., mandatory spending).
    2. Activities expressly required by law.
    3. Those necessary for the president’s constitutional duties.
    4. Functions protecting life and property.

Quote:

"The Anti Deficiency Act ... prohibits federal agencies... from continuing to spend money beyond appropriations. But it has some carve outs for functions that are necessary to protect the physical safety and property of the federal government."
—Nick Bednar (04:22)

3. Executive "Gamesmanship" & Past Shutdowns

(06:31–10:19)

• The Trump administration (2018–2019) tried to minimize political fallout by creative legal interpretations, e.g., using carryover balances, recalling IRS workers for tax refunds.
• Such discretion is limited; many essential workers remain unpaid (IOUs), destabilizing their roles the longer a shutdown continues.

Quote:

"They were trying to keep everything flowing as normal, which you're not allowed to do."
—Sam Berger (07:14)

4. Manipulating Shutdown Impact: Policy & Political Choices

(10:19–13:42)

• There is always some political discretion in interpreting "essential" functions.
• The current shutdown seems to maximize pain for Democrats rather than minimize public suffering.
• GAO reports and stats (like only 23% of workers furloughed, selective agency targeting) suggest aggressive, politicized compliance.

Notable Data:

• EPA: 90% workforce furloughed; Treasury: very few.

Quote:

"Presidents tend to take the position that the functions they prefer... are exactly the sort of positions that need to be filled during a shutdown."
—Nick Bednar (10:57)

5. Limits of Executive Control & the Power of Federal Employees

(13:42–17:53)

• The administration can't direct Congress or judiciary shutdown activities.
• Federal employees, even "essential" ones, may stop coming to work after weeks of unpaid labor, as seen during previous shutdowns (e.g., air traffic controller sick-outs).

Quote:

"The government only continues to perform those functions to the extent that federal workers continue to show up."
—Nick Bednar (15:38)

6. New Tactics: Using Shutdowns to Justify RIFs

(17:53–24:28)

• The Trump/OMB strategy: leverage the shutdown to execute large permanent layoffs ("reductions in force"), using the absence of appropriations as cover.
• Legal footing: Civil Service law and RIF regulations give agencies broad (arguably too broad) authority to declare a "shortage of funds."

Quote:

"Their argument is ... during a shutdown, nothing is authorized, and so anyone can be fired. If that sounds ... inconsistent with logic or fact, you are correctly following their argument."
—Sam Berger (18:50)

"A RIF is permissible due to both the lapse in appropriations that results from the shutdown, but also the anticipation of budget cuts that might result after the conclusion."
—Nick Bednar (21:18)

7. Are These Firings Really Legal or Justified?

(24:28–28:34)

• Both guests agree these RIFs are a political tactic, not a policy or legal necessity.
• RIFs are meant for PERMANENT funding changes; shutdowns are temporary disruptions.
• Courts have traditionally deferred heavily to agency justifications for RIFs, but the extent of this deference is constitutionally untested in these circumstances.

Quote:

"You can't fire people because you're trying to force another political party to agree to a bill. That's not an appropriate reason."
—Sam Berger (24:57, again at 02:37 in the uncut transcript)

8. Can Agencies Plan or Execute RIFs During a Shutdown?

(33:15–38:13)

• No historic precedent for executing RIFs during a shutdown; it's not an "essential" or "excepted" activity.
• The argument for permitting HR to process RIFs is extremely weak; mostly, such planning must be done beforehand.

Quote:

"The idea that RIF planning is a necessary function that has to be performed just isn't true ... it has historically never happened."
—Nick Bednar (35:49)

9. Procedural & Practical Chaos: RIF Notices in Practice

(39:20–43:13)

• RIFs require complex, error-prone procedures: proper notice, competitive groupings, "bumping and retreating" rights.
• Even if implemented, RIFed employees have reinstatement rights, leading to policy incoherence if funding is restored post-shutdown.

Quote:

"The government has a ... historically bad record of performing personnel functions during shutdowns. And I can't imagine they are going to successfully perform one of the most complicated personnel functions you can do in a shutdown setting."
—Nick Bednar (39:20)

10. Administrative Partisanship: Politicized Messaging in Agencies

(43:13–45:38)

• Shutdown-period directives have included forced partisan blame statements in federal out-of-office replies and public-facing websites, possibly violating the Hatch Act.

Quote:

"This is pretty blatant political activity. So federal employees were sort of like, I don't think I should make a partisan statement on my email, which is the correct response."
—Nick Bednar (43:42)

11. Big Picture: The Erosion of Norms, Congress’s Power, and OMB Centralization

(45:38–53:46)

• Trump's OMB (Russ Vought) is using shutdowns to centralize power and erode congressional power of the purse, undermining the legislative-executive balance.
• This behavior threatens the reliability and legitimacy of the executive branch and government as a whole, impacting not just this administration but also future ones.

Quote:

"What we've seen is an administration that's untethered from the law, ... focused on trying to abuse their power to advance partisan goals, hurt their enemies, help their friends. That's anathema to our American system."
—Sam Berger (46:01)

"[This situation] demonstrates how much of administration in the executive branch was governed by norms ... Congress should really use this as an opportunity to check the executive branch and prevent this sort of deconstruction."
—Nick Bednar (49:00)

Notable Quotes & Memorable Moments

• On the radical use of shutdowns for partisan ends:

  "And as we've already seen, I don't think we even have to—it's not conjecture at this point ... this is an administration that doesn't speak in subtext. It speaks in all capital texts."
  —Sam Berger (07:14)

• On administrative incompetence and malice:

  "Even if they RIF all these people ... the people who have to be notified first are the people they just RIFed because they have a right to apply back for those positions ..."
  —Nick Bednar (39:20)

• On institutional damage:

  "I view this as a larger issue about just the destruction of the credibility of the executive branch for no reason and really at the behest of just President Trump and his senior advisors ..."
  —Sam Berger (51:55)

Timestamps for Major Segments

• Why Do Shutdowns Happen? — 02:08–03:57
• What Remains Open/Closed? — 03:57–06:31
• Executive Gamesmanship & Trump’s Shutdowns — 06:31–10:19
• Policy & Political Choices in This Shutdown — 10:19–13:42
• The Limits of Executive Power & Role of Workers — 13:42–17:53
• Shutdown as Excuse for RIFs — 17:53–24:28
• The Legality and Sense of Shutdown RIFs — 24:28–28:34
• Are Reduction-in-Force Activities Legal During a Shutdown? — 33:15–38:13
• Procedures and Practicalities of RIFs — 39:20–43:13
• Politicized Administrative Messaging — 43:13–45:38
• Broader Context: Executive Deviation from Norms, Congressional Power, Centralization — 45:38–53:46

Takeaways

• Shutdowns are a recurring feature of a broken appropriations process but are being weaponized in new, norm-breaking ways.
• The current administration is leveraging the shutdown as a political cudgel, not just an administrative necessity.
• Federal workers have leverage due to the practicality of their continued unpaid labor.
• Legal and procedural guardrails exist but are stretched and largely untested in these extreme circumstances.
• The erosion of trust, legitimacy, and institutional norms risks long-term damage to federal governance, regardless of partisan outcomes.

Summary by Lawfare Podcast Summarizer
(Episode edited for clarity; timestamps correspond with key Lawfare Podcast content. Quotes and segment attributions preserved in original tone and language.)