WASHINGTON — President Donald Trump said Tuesday that his administration may circumvent a law he signed in 2019 that mandates furloughed federal workers receive back pay for the days and weeks of missed time due to a government shutdown.
There are roughly 750,000 federal employees currently furloughed on top of millions more civilian workers and military members who will go unpaid for the duration of the shutdown. Trump and senior administration officials have boasted they may use the shutdown to fire thousands of federal workers, specifically “a lot of people” they associate with Democrats, as the president put it last week.
“I would say it depends on who we’re talking about,” Trump said Tuesday after being asked what the White House position on back pay was during an unrelated Oval Office meeting with Canadian Prime Minister Mark Carney. “I can tell you this: The Democrats have put a lot of people in great risk and jeopardy, but it really depends on who you’re talking about.
“But for the most part, we’re going to take care of our people. There are some people that really don’t deserve to be taken care of, and we’ll take care of them in a different way,” the president added.
When asked if he planned on defying the Government Employee Fair Treatment Act of 2019, which Trump signed during his first term after the last government shutdown stretched across 35 days, the president said: “I follow the law, and what the law says is correct, and I follow the law.” He did not expand on his stance nor directly address a reported White House memo drafted by officials in the Office of Management and Budget that argues Congress must provide back pay in the government funding legislation that ultimately ends the shutdown, or it could simply choose not to.
That office is led by Russ Vought, the key architect of the Heritage Foundation’s Project 2025 roadmap for a second Trump term whom Trump favorably compared to the grim reaper last week. In a chapter he write in the nearly 1,000-page plan, Vought detailed how a second Trump administration would pursue “the existential need for aggressive use of the vast powers of the executive branch” to “bend or break the bureaucracy to the presidential will.”
Axios was the first to report the existence of the memo, which has not been made public, but subsequent reporting from The Associated Press, The Washington Post, The New York Times, Politico and other outlets have detailed its contents.
Last week, Senate Majority Leader John Thune — the South Dakota Republican who needs support of some Democratic senators to pass government funding legislation with a 60-vote threshold — warned Democrats that a shutdown would give Vought opportunity to pursue his desired purges and that Republican lawmakers “don’t control what he’s going to do.”
In separate comments Tuesday, House Speaker Mike Johnson of Louisiana appeared open to the idea while Thune said his understanding of the law was that workers would receive retroactive pay and was not aware of the legal arguments against that.
“It is true that in previous shutdowns, many or most of (furloughed workers) have been paid for the time that they were furloughed,” Johnson said at a news conference, noting he hadn’t spoken to the White House about the legal case against paying back pay. “I’m sure there will be a lot of discussion about that, but there are legal analysts who think that is not something the government should do. If that is true, that should turn up the urgency and necessity of the Democrats doing the right thing here.”
Johnson voted for the 2019 law, and guidance on the speaker’s website published for the current government shutdown states “under federal law, employees are entitled to back pay upon the government reopening.” Guidance on the White House website that was updated Sept. 30 stated that the 2019 law mandates “both furloughed and excepted employees will be paid retroactively as soon as possible after the lapse ends, regardless of scheduled pay dates.”
A version of that White House document currently available on its website, which says it was updated Oct. 3, no longer includes that statement.
“Donald Trump and his administration have been torturing federal employees since the very beginning of his presidency engaging in mass firings, harassing them, brutalizing them, laying people off without justification and violating the law,” House Democratic leader Hakeem Jeffries of New York said at a Tuesday news conference. “The law is clear. Every single furloughed federal employee is entitled to back pay, period. Full stop. The law is clear, and we will make sure that that law is followed.”
American Federation of Government Employees national President Everett Kelly, the leader of the largest union of federal employees with more than 820,000 workers in its ranks, called the White House’s reported legal argument “frivolous” and an “obvious misinterpretation of the law.”
“It is also inconsistent with the Trump administration’s own guidance from mere days ago, which clearly and correctly states that furloughed employees will receive retroactive pay for the time they were out of work as quickly as possible once the shutdown is over,” Kelley said in a statement.
Democratic lawmakers accused Trump of threatening to violate federal law as a negotiating tactic.
“The letter of the law is as plain as can be—federal workers, including furloughed workers, are entitled to their backpay following a shutdown,” Washington Sen. Patty Murray, the Senate Appropriations Committee’s top Democrat, wrote. “Another baseless attempt to try and scare & intimidate workers by an administration run by crooks and cowards.”