OMB agues backpay for furloughed feds not automatic

American feds are again being leveraged by the Trump administration, now via a draft memo from the OMB’s counsel arguing that back pay for furloughed workers after the current shutdown is not automatic. As Roll Call reports, OMB argues Congress must explicitly appropriate funds in the bill that reopens government to pay federal workers, despite that the Government Employee Fair Treatment Act of 2019 (GEFTA) “unambiguously” guarantees retroactive pay once a funding bill is enacted.

The friction turns on how GEFTA amended the Antideficiency Act. The statute states furloughed and excepted employees “shall be paid … at the earliest date possible after the lapse … ends,” but it also makes those payments “subject to the enactment of appropriations Acts.” That’s the question: does GEFTA itself create a binding obligation that agencies must honor the moment funding resumes, or must Congress supply specific appropriations authority to execute the payments.

Budget lawyers note that Congress often addresses this ambiguity with standard “startup” provisions in a reopening continuing resolution, which authorize agencies to obligate funds for costs incurred during the lapse, including retroactive pay. Senate Appropriations Chair Susan Collins said she believes GEFTA settled the matter but acknowledged a “backup” appropriation could remove doubt.

An appropriated entitlement is a benefit established in authorizing law that creates a legal obligation to pay eligible recipients through money provided in annual appropriations. When appropriations lapse, beneficiaries may retain a legal claim even when payments pause. SNAP is a familiar example—benefits are owed by law, but monthly disbursements still hinge on available appropriations. During extended funding gaps, SNAP payments can stall when carryover funds dry up, even though eligibility and the government’s underlying obligation remain.

Applied to GEFTA, some experts argue Congress in 2019 transformed shutdown back pay into an appropriated entitlement: paying furloughed employees is not optional, but agencies still need appropriations language (either in a CR or separate bill) to “kick the money out the door.” Should Congress fail to act, the legal obligation is still enforceable—just more slowly, potentially through claims at the US Court of Federal Claims.

Practically, that leaves Speaker Mike Johnson with a narrow path. Amending the House‑passed CR or passing a follow‑on fix by unanimous consent would resolve the operational risk quickly; skipping the fix gambles on a maximalist reading of GEFTA that some career budget and personnel offices may hesitate to execute without explicit text.