Report Defines Legal Limits on Executive Power During Government Shutdowns

Why It Matters

A new Congressional Research Service report published May 1, 2026 lays out the legal architecture governing what the federal government can and cannot do when Congress fails to pass appropriations on time.

The report arrives as the Trump administration and Congress continue to rely on continuing resolutions to keep the government funded, with the threat of a lapse in appropriations a recurring backdrop to budget negotiations. The Antideficiency Act, the central statute analyzed in the report, is the law that determines which federal employees report to work, which agencies keep operating, and how much discretion the executive branch actually has when funding runs out.

The central tension here is that the executive branch has real flexibility in deciding what counts as "essential" during a shutdown, but this flexibility has legal limits that the current administration is bound by.

The Big Picture

The Antideficiency Act (31 U.S.C. §§ 1341–1342, 1511–1519) generally bars federal agencies from obligating or expending funds in advance of or in excess of an appropriation, and from accepting voluntary services or employing personnel without appropriated funds. The practical consequence is that when appropriations lapse, agencies must largely cease operations.

That standard was not always so clear. The CRS report traces how legal interpretation evolved significantly over decades. A turning point came with Attorney General Benjamin Civiletti's opinions in 1980 and 1981, which established the modern framework requiring agencies to suspend all non-essential operations during a funding gap. Before those opinions, the Antideficiency Act had been interpreted far more loosely, and agencies often continued operating through lapses without much legal scrutiny.

However, not everything must stop. The report identifies two main pathways for continued operations. First, statutory exemptions apply to activities where Congress has authorized continued operations in the absence of appropriations, such as programs funded through permanent or multi-year appropriations. Second, a narrow emergency exception permits continued activity when it involves "emergencies involving the safety of human life or the protection of property" under 31 U.S.C. § 1342.

Under guidance from the Office of Management and Budget, agencies must conduct their own legal analysis each time a shutdown occurs to determine which functions are "excepted" and which must cease. Critically, the report notes that past determinations inform but do not bind future shutdowns. Every lapse requires a fresh legal call.

Political Stakes

For the Trump administration, the report clarifies something that's politically inconvenient. OMB and individual agencies retain meaningful discretion in shutdown determinations, but they cannot simply declare functions essential in order to sidestep the law. That matters, given the administration's broader interest in reshaping the federal workforce and executive branch operations, including the restructuring efforts associated with the Department of Government Efficiency.

The report is explicit that the Antideficiency Act exists to protect Congress's power of the purse, preventing the executive branch from operating without congressional authorization. Any attempt to continue government operations or redirect spending during a lapse would run directly into this statutory wall, a live issue given recent debates over executive spending authority.

For Republicans on Capitol Hill, the report is a reminder that the recurring reliance on continuing resolutions to avoid full appropriations confrontations does not eliminate legal exposure. Each one that expires without a successor creates the conditions the Antideficiency Act was written to govern.

For Democrats, the report reinforces an argument they have made repeatedly. They say the legal framework is designed to make shutdowns painful and operationally disruptive, not to give the executive branch room to pick and choose what keeps running based on political preference.

Which federal services continue during a lapse, and which do not, is not purely a political decision. It is a legal one, made agency by agency, function by function, under a framework that has been in place in its modern form since the early 1980s.

The Bottom Line

As long as full-year appropriations remain elusive and continuing resolutions remain the default, the Antideficiency Act's requirements will stay relevant.

According to the CRS, several legislative proposals have been introduced in the 119th Congress that, if enacted, would affect how shutdowns are analyzed and managed under the Act. The report notes it "concludes by discussing several legislative proposals from the 119th Congress that, if enacted, would affect shutdown analysis," though specific bill numbers are not identified in the publicly available summary. The full text of the report contains those details.

The rules governing a government shutdown are not improvised in the moment. They are statutory, they are specific, and the executive branch's room to maneuver within them is more constrained than political rhetoric often suggests.

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