The Shutdown Shitshow

As Trump uses the shutdown to settle scores, the public bears the cost.

Illustration by Abdelafatah Mukhtar

Government shutdowns are bad. They inflict pain on the economy, on those who rely upon public services, and on those who provide those services. They reduce state capacity.

But only Trump and his budget chief Russ Vought are brave enough to ask: what if shutdowns aren’t painful enough? How can we make things worse? How can we use this as an opportunity to target our political enemies? Never mind if it illegally strips away valuable public services that we all rely on.

The central ethos of a personalist regime is that government should be run via the logic of loyalty rather than law. We are seeing this play out with the shutdown.

On the same day that the White House dropped $20 billion to bail out political allies in Argentina, and political allies who had invested in Argentina, they announced layoffs of over federal 4,000 employees. A disproportionate number were in Health in Human Services.

In very simple terms, the Trump administration is propping up the government of his ally, Javier Milei, while firing government officials working for us. We are the ones being hurt by their removals, and we didn’t even get a golden chainsaw as a bribe.

During shutdowns, both parties try to blame the other. This is entirely understandable. Yet historically, there were some limits. One is that presidents did not convert government resources, including public employees, into partisan mouthpieces. Another is that politicians might have had their own narrative, but they typically did not tell outright lies about how shutdowns work. Finally, Presidents did not use the shutdown to try to target their political enemies.

The Trump administration is doing all three.

Does the Hatch Act Still Exist?

A simple interpretation of the Hatch Act is that government officials, whether the President or a civil servant, cannot use government resources for partisan purposes. The Trump administration largely stopped monitoring Hatch Act violations in its first term. Indeed, Trump officials seemed to enjoy violating it, as when they held Republican National Convention events at the White House.

Separating where politics ends and their public office begins is always difficult, but the Trump administration has gone well beyond past practices when it comes to the shutdown. Government websites describe the “Radical Left Democrat” shutdown or the “Democrat-led government shutdown.”

Civil servants were encouraged to blame Democrats in their out-of-office email replies when being furloughed. Some were given no choice at all, with political appointees hijacking their email to add partisan messaging. I cannot recall such a blatant example of federal employees being coerced to adopt partisan speech.

The shutdown will cause delays at airports, but even worse, will force travelers to listen to DHS Secretary Noem say that “Democrats in Congress refuse to fund the federal government.” Some airports are refusing to run Noem’s video, on the entirely reasonable grounds that it is likely illegal at the federal level, and in some state governments.

As with many governance norms, the executive branch was largely left to police itself on Hatch Act violations via the Office of Special Counsel (OSC). One reason for Trump’s success is that by replacing these key internal referee positions with loyalists, he has ensured the ref routinely swallows the whistle. As Molly Roberts at LawFare notes about Hatch Act violations, the acting OSC is also the U.S. Trade Representative who has no background on these issues. Meanwhile, Trump’s nominee to become the permanent OSC, Paul Ingrassia has a public record of denigrating federal employees. Oh, and he was recently accused of canceling a co-workers hotel room during a government work trip, and forcing her to share his room. Good luck with any gender-based discrimination claims.

Lying about the Shutdown

As with any major political battle, especially involving a lot of blame-shifting, it is too much to expect nonpartisan accounts from partisan actors. But the misrepresentation of basic points of law to the public has been incredibly blatant.

The Big Lie of the shutdown is the claim that the failure of Republicans and Democrats to agree to a budget mean that federal employees must be fired. Never mind that this never happened before, including during the last shutdown when Trump was in charge and Russ Vought was his budget chief.

For example on Meet the Press, J.D. Vance insisted that:

We have to lay off some federal workers in the midst of this shutdown to preserve the essential benefits for the American people that the government does provide. We don’t want to be in this situation. We don’t want to be laying off federal workers, but the Democrats have shut down the government, they have forced us to choose between American citizens and federal bureaucrats. We’re choosing the benefits, the critical services that benefit our American citizens.

Literally none of this is true.

There is no relationship between laying off workers and ensuring access to services. Ok, let me amend that. There is a relationship, which is that cutting more and more federal workers makes it less likely the public can access federal services. This is the opposite to the relationship that Vance suggests. But to be clear, firing federal employees does not mean that other services that are shutdown suddenly are funded again. That is not how it works.

“We don’t want to be in this situation.” This is also a lie. The layoffs are a choice. They are a choice that Vance, Vought, and Trump are making because they want to. It is the only reason the layoffs are occurring.

Ideological Targeting of Shutdown Cuts

Trump has been quite upfront about using the shutdown as an opportunity to engage in score-settling. When asked about the first wave of layoffs, Trump said “It will be Democrat-oriented. …They should be Democrat-oriented.” When warning about a second wave of layoffs he left no doubt: “we’re closing up programs that are Democrat programs that we’re opposed to. And they’re never going to come back, in many cases. … We’re not closing up Republican programs.”

What does this actually mean? Well, Vought has illegally impounded an estimated $27 billion from blue states and cities, with less than $1 billion cut from Republican districts. But it is harder to make such distinctions among federal agencies. However, in practical terms, some are viewed as more closely aligned with one party or another. Political scientists categorize agencies are more liberal (think HHS) or more conservative (think DOD). Even if you object to these categorizations in normative terms, they offer explanatory power in moments like this.

The pattern of layoffs throughout this Trump administration shows Trump disproportionately targeting agencies viewed as liberal, and growing agencies such as ICE and CBP, viewed as more conservative. The shutdown extends this pattern. As political scientist Adam Bonica points out, the category of employees that are designated non-essential — and therefore eligible to be fired under Vought’s formula — are disproportionally in liberal agencies, even though such agencies already saw more losses during previous Trump layoffs.

And so it proved. The Friday night layoffs targeted HHS, the Department of Education, the EPA, Housing and Urban Development, Treasury and the Department of Homeland Security.

Lets dig in a bit to these cuts. Before we do, lets remind ourselves that the purpose of Reductions in Force (RIFs) has been, historically, to structure layoffs when Congress has cut appropriations. Vought has reversed this logic, pursuing RIFs for fully funded programs and then asking Congress to incorporate these cuts into appropriations language via rescissions.

RIFs do not magically allow the President to do things he is otherwise not allowed to do. For example, RIFs are not an alternative to reorganization authority in government, which can only be conferred by Congress. And RIFs are not a backdoor means to impoundments, meaning that RIFs should not remove so many employees that a program can no longer function. But with the shutdown, Trump and Vought are using RIFs for exactly these purposes.

A federal Judge has imposed a temporary block on RIFs during the shutdown, saying the Trump administration has:

… taken advantage of the lapse in government spending, in government functioning, to to assume that that all bets are off, that the laws don’t apply to them anymore and that they can impose the structures that they like on a government situation that they don’t like. And I believe that the plaintiffs will demonstrate ultimately that what’s being done here is both illegal and is in excess of authority.

Settling Scores with CISA

Lets go back to some of the agencies cut. Some are not obviously liberal. But dig deeper and the story of shutdown score-settling holds up.

DHS is conservative, but the unit targeted was the Cybersecurity and Infrastructure Security Agency. This was the unit that said that the the 2020 election was not, contrary to Trump’s claims, subject to foreign vote manipulation. Since that time Trump has put the unit in his crosshairs, and is even investigating its former head, his own appointee, Chris Krebs.

Just pause for a second. Is cybersecurity no longer a concern for the United States? Many cuts occurred in the Infrastructure Security division which seeks to protect against cyber attacks to crucial infrastructure like power grids and water treatment plants. Have those risks disappeared?

Chaos at the CDC

While Vought is driving the RIFs they require some participation of agency leadership. RFK Jr., as Secretary of HHS, would have had to greenlight the further gutting of the Centers for Disease Control. RFK Jr. removed the former head of the CDC, Susan Monarez, when she would not agree to publicly announce that science supported his war on vaccines. Monarez also reported that RFK Jr. categorized CDC scientists as “killing children and they don’t care.”

CDC officials took the brunt of the Friday night massacre. HR staff were recalled from furlough to oversee the RIFs. The cuts eliminated disease detectives, including those overseeing a new Ebola outbreak in Congo. USAID previously played a role in monitoring and limiting the spread of infectious diseases before the agency was eliminated. So US capacity in this space is already spread thin.

The cuts also eliminated staff who provided the Morbidity and Mortality Weekly Report, and the National Health and Nutrition Examination Survey (NHANES) which collects basic health data. This fits with a broader pattern of the Trump administration eliminating data that is crucial to understanding the health of our country. A team that tracks measles, which has been increasingly busy, was also cut. One CDC official noted the retributive nature of the firings:

The administration did not like that CDC data did not support their narrative, so they got rid of them. They didn’t like that CDC policy groups would not rubber stamp their unscientific ideas, so they got rid of them.

After public outcry, the administration said that some of the layoffs were in error, and restored more than half of the 1,300 who had been laid off. The New York Times recounts the restoration process.

Athalia Christie, who was “incident commander” of the measles response, had nearly 30 years of experience managing outbreaks, including Ebola, Marburg and mpox, previously called monkeypox. The White House often reached out to her for help with outbreaks.

“Athalia is very well liked by the administration,” said Dr. Demetre Daskalakis, who led the respiratory disease center before he resigned in August. He had brought in Dr. Christie to lead the measles response.

Another senior infectious disease expert, Maureen Bartee, was working at the Department of State. But both their jobs fell under the director’s office of the C.D.C.’s Global Health Center, which was eliminated in the layoffs.

By Saturday night, employees of both offices, including Dr. Bartee and Dr. Christie, had received notices of their rehiring. They and others received a two-paragraph email saying that the notice they had received “on or about” Oct. 10 had been revoked.

Lets break this down a bit. Because of the way RIFs work, entire units were cut. Once the administration found that people they knew and liked, including people who had decades of experience in managing what to do when shit hits the fan, were being fired, they restored the entire unit. This speaks to the arbitrary nature of the RIFs. Someone who does not know the core tasks of the agency, or the science behind what they do, decided, “Hey, we don’t really need this.” Then they realize that they do. This is echoes the firing of nuclear weapon security staff that happened a few months ago. These are careless people, but sometimes they cuts are so obviously dangerous that they have to walk things back.

Even with the restoration of some staff, one-quarter of all CDC staff is gone compared to nine months ago, with no scientists, public health, or medical experts in leadership positions for a scientific agency whose job is to protect public health.

For most of us, the logic for why it is in our interest to limit of the spread of deadly communicable diseases is straightforward. But for those opposed to the CDC, and MAHA-kooks, any active effort by government to protect your health is inherently suspicious.

Schrödinger’s IRS

Treasury cuts were concentrated at the IRS. Just a few weeks ago, the IRS was one of a number of agencies that was reversing its layoff plans and rehiring staff it had previously pushed out. After 26,000 employees had left, there seemed to be some recognition that someone had to collect taxes. But the IRS was still victim of the Friday night RIF, with another 1500 eliminated.

So the IRS is simultaneously hiring people back and firing people. Which is it? There is little sense that such decisions are based on a real analysis of the needs of the agency.

Just a week ago, Frank Bisignano became the new acting leader of IRS, after it had gone through six other commissioners since January. (Technically, Treasury Secretary Scott Bessent is the Acting Commissioner, and Bisignano holds a new position: CEO.) He is also running the Social Security Administration, itself a huge agency, with no prior government experience in either area. Maybe he is a terrific manager, but these are big and complex organizations that deserve their own leaders. The fact that no-one in Treasury or IRS is willing to push back against Vought’s gutting of the agency suggests that it will continue to be shortchanged.

Education: Repealing Disability Law via RIF

The question of who belongs in Trump’s America extends to people with disabilities. Trump’s RIFs eliminated the Office of Special Education and Rehabilitative Services at the Department of Education. This office provides guidance to states on disability issues in education, but also makes sure that states are implementing the Individuals with Disabilities Education Act (IDEA). The office has been cut by about 95% even as it is still tasked with overseeing 10% of schoolchildren.

IDEA was passed a half-century ago at a time when there was broad bipartisan agreement that a more inclusive educational system was a good thing. It was repealed last Friday. No law was passed. Trump decided simply to make the law a dead letter.

If you have had any interaction with education at the state and local level, you will know there are strong incentives for school systems to shortchange students with disabilities by skirting the IDEA mandates. That is why the law exists. Without a federal cop on the beat, states will know that it will be safer for them to ignore it. People at state governments see it this way also. One state director of special education told NPR:

I’m fearful. I think it’s good for states to know there’s federal oversight and that they’ll be held accountable. The concept of leaving special education up to states sounds great, but it’s scary. What happens if one state decides to interpret the law one way, but another state disagrees and interprets it differently?

The pattern of targeted abandonment of the law in education extends to slashing of the Office of Civil Rights which oversees cases of discrimination in education, and the Office of Elementary and Secondary Education, which oversees Title I, the largest source of federal funding to schools. The tasks of these offices still exist. The law that created them has not changed. There will simply not be enough people who can make sure the tasks are implemented, the law fulfilled.

And look, if you think states should be able to do what they want in these aspects of education, thats fine. Go change the law. Which means working through Congress, not the executive branch. I don’t think of myself as an originalist, but I vaguely recall that there is something in the constitution requiring that the President “take Care that the Laws be faithfully executed.” The opposite is happening now.

Paying the Military First

After Trump’s last shutdown, Congress decided it was a bad idea to have uncertainty about whether civilian federal employees would or would not get backpay. So they passed the Government Employee Fair Treatment Act saying that “each employee” affected by a shutdown would receive backpay. The law is short and uncomplicated, just over one page. There is nothing in the law that distinguishes between furloughed employees, or employees required to work. Nevertheless, Russ Vought looked at that law and suggested it means the opposite of what Congress intended. That, in fact, furloughed employees did not need to receive backpay.

And so now, when it comes to the treatment of federal employees during shutdowns, there are four different tiers:

• The military: only federal employees getting paid during the shutdown.

• Federal employees mandated to work: will get backpay, if they are not fired.

• Federal employees furloughed: at highest risk of being fired, may or may not get backpay

• Contract staff, ranging from consultants to blue collar workers like janitors or food staff: entirely at the discretion of private employers.

What about the top tier? Democrats proposed a piece of legislation that would provide payments for troops through the shutdown. This is not unusual. Uniformed military are generally exempted from the hardships of missed paychecks during shutdowns even as their civilian counterparts are not. What was odd was that the legislation was not taken up in the House before Congress adjourned.

Was this oversight was an accident? No. Soon after, the White House announced that it found $8 billion in Department of Defense R&D money that it could reallocate to cover military pay, at least temporarily. There is some debate about whether this is legal or not, but it seems doubtful that some R&D scientist will be brave enough to contest it in court.

Indeed, Trump issued a memorandum saying that he could take unspent money and repurpose it to pay the military, and the FBI. The kind way of putting this is that it is unprecedented it. The accurate way of putting it is that it is illegal, a power grab that undercuts Congressional power and reflects Trump’s efforts to make the armed forces and national police more loyal to him. It is deeply troubling development that their paychecks depend upon his willingness to dig into the treasury, as opposed to it being a bipartisan matter of law. Such a dependence is exactly the opposite of what we want to see in a regime built around the logic of personalist loyalty.

It also just feels like late-stage-empire stuff. A huge headache for leaders historically has been ensuring that troops get paid, to ensure they don’t do things like sack your cities. (See Patrick Wyman’s excellent The Verge, for examples). Stable and rich democracies solve this problem by making such payments routine and predictable, and in doing so reduce the risk of anti-democratic military actions. The fact that the White House is coming up with an inventive and possibly illegal way to pay the military feels like the sort of anecdote some future historian will use to illustrate how the wheels were coming off the American empire.

Where Does this End?

Lets start with Congressional negotiations. Neither Republicans or Democrats have moved much since the shutdown began. Republicans seem somewhat surprised that their seemingly strong position is not working out well, but also seem tied to Trump and Vought’s strategy of using the shutdown in punitive and ideological ways.

Democrats seem emboldened enough to extend their demands beyond healthcare subsidies to try to reassert congressional power on spending. It is not unreasonable to ask what is the point in making a deal with their fellow members of Congress when Russ Vought can negate the terms of that deal.

Look beyond Congress and the RIFs I have described here will be challenged in court. Can we assume the courts will intervene to stop it? A year ago, I would have said “yes, obviously.” Now its unclear, leaning toward no.

The repeated pattern of this Supreme Court is to privilege the right of Trump to do great damage over obvious and immediate harms. Back in July, the Court reviewed a case on RIFs, and consistent with this pattern, said they could not review the Executive Order enabling the RIFs, but could only review the RIFs, which could move ahead in the meantime. In dissent, Justice Jackson pointed out that using RIFs to close agencies or programs amounted to a reorganization, a power that the courts have determined is Congressional. Getting rid of offices whose existence is necessary to ensure the implementation of laws seems to be both a reorganization, as well as a clear encroachment on Congressional powers. (See, most obviously, the Office of Special Education and Rehabilitative Services discussed above).

When such a RIF case is decided, some Justices will say something like the following: executive actors are closer to the operation of these services, and so we grant them broad discretion on managerial decisions because they know better.

This makes sense in theory and for pretty much any prior Presidential administration. In practice, this is what we have with the Trump administration: political appointees RIFing employees but don’t know which employees work for which units, and who don’t know what tasks they perform. You have employees been fired and rehired multiple times, or being asked to inform their bosses that they were fired. This is not an executive that is using RIF policy to improve implementation.

In this future decision, some judges will pointedly ignore Trump’s public statements about using the RIFs to inflict pain on his perceived political opponents. The same judges will say that, somehow, cancelling employees working on programs created by Congress to the point that program can no longer function is entirely constitutional.

The question is whether these judges will be in the majority. The Supreme Court’s consistent indifference to stopping Trump’s assault on state capacity suggest they will be. Meanwhile, the damage mounts. Government capacity is like a muscle, not a light-switch. Once you have damaged it, it cannot be easily or quickly restored.

University of Michigan professor Don Moynihan is the author of the Can We Still Govern? Substack. Read the original article here.