1 

Government Operations in the Event of a 

Lapse in Appropriations 

A government agency may employ personal services in advance of appropriations only when there is a 

reasonable and articulable connection between the function to be performed and the safety of human 

life or the protection of property, and when there is some reasonable likelihood that either or both 

would be compromised in some significant degree by the delay in the performance of the function in 

question. 

August 16, 1995 

MEMORANDUM OPINION FOR THE DIRECTOR 

OFFICE OF MANAGEMENT AND BUDGET

This memorandum responds to your request to the Attorney General for advice 

regarding the permissible scope of government operations during a lapse in 

appropriations.1

The Constitution provides that “no Money shall be drawn from the Treasury, 

but in Consequence of Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7. 

The Treasury is further protected through the Antideficiency Act, which among 

other things prohibits all officers and employees of the federal government from 

entering into obligations in advance of appropriations and prohibits employing 

federal personnel except in emergencies, unless otherwise authorized by law. See

31 U.S.C. §§ 1341 et seq.

2

In the early 1980s, Attorney General Civiletti issued two opinions with respect 

to the implications of the Antideficiency Act. See Applicability of the Antideficiency Act Upon a Lapse in an Agency’s Appropriations, 4A Op. O.L.C. 16 (1980) 

(“1980 Opinion”); Authority for the Continuance of Government Functions 

During a Temporary Lapse in Appropriations, 5 Op. O.L.C. 1 (1981) (“1981 

Opinion”). The 1981 Opinion has frequently been cited in the ensuing years. Since 

that opinion was written, the Antideficiency Act has been amended in one respect, 

and we analyze the effect of that amendment below. The amendment amplified on 

the emergencies exception for employing federal personnel by providing that “[a]s 

used in this section, the term ‘emergencies involving the safety of human life or 

 1

 We do not in this memorandum address the different set of issues that arise when the limit on the 

public debt has been reached and Congress has failed to raise the debt ceiling. 2

 For the purposes of this inquiry, there are two relevant provisions of the Antideficiency Act. The 

first provides that “[a]n officer or employee of the United States Government or the District of 

Columbia government may not . . . involve either government in a contract or obligation for the 

payment of money before an appropriation is made unless authorized by law.” 31 U.S.C. 

§ 1341(a)(1)(B). The second provides that “[a]n officer or employee of the United States Government . . . may not accept voluntary services . . . or employ personal services exceeding that authorized 

by law except for emergencies involving the safety of human life or the protection of property.” 31 

U.S.C. § 1342. 
Supplemental Opinions of the Office of Legal Counsel 

2 

the protection of property’ does not include ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human 

life or the protection of property.” 31 U.S.C. § 1342. 

With respect to the effects of this amendment, we continue to adhere to the 

view expressed to General Counsel Robert Damus of the Office of Management 

and Budget that “the 1990 amendment to 31 U.S.C. § 1342 does not detract from 

the Attorney General’s earlier analyses; if anything, the amendment clarified that 

the Antideficiency Act’s exception for emergencies is narrow and must be applied 

only when a threat to life or property is imminent.” Letter for Robert G. Damus, 

General Counsel, Office of Management and Budget, from Walter Dellinger, 

Assistant Attorney General, Office of Legal Counsel (Oct. 19, 1993) (“1993 

Letter”). In order to ensure that the clarification of the 1990 amendment is not 

overlooked, we believe that one aspect of the 1981 Opinion’s description of 

emergency governmental functions should be modified. Otherwise, the 1981 

Opinion continues to be a sound analysis of the legal authorities respecting 

government operations when Congress has failed to enact regular appropriations 

bills or a continuing resolution to cover a hiatus between regular appropriations. 

I. 

Since the issuance of the extensive 1981 Opinion, the prospect of a general 

appropriations lapse has arisen frequently. In 1981, 1982, 1983, 1984, 1986, 1987, 

and 1990, lapses of funding ranging from several hours to three days actually did 

occur. While several of these occurred entirely over weekends, others required the 

implementation of plans to bring government operations into compliance with the 

requirements of the Antideficiency Act. These prior responses to the threat of or 

actual lapsed appropriations have been so commonly referred to as cases of 

“shutting down the government” that this has become a nearly universal shorthand 

to describe the effect of a lapse in appropriations. It will assist in understanding 

the true extent of the Act’s requirements to realize that this is an entirely inaccurate description. Were the federal government actually to shut down, air traffic 

controllers would not staff FAA air control facilities, with the consequence that 

the nation’s airports would be closed and commercial air travel and transport 

would be brought to a standstill. Were the federal government to shut down, the 

FBI, DEA, ATF and Customs Service would stop interdicting and investigating 

criminal activities of great varieties, including drug smuggling, fraud, machine 

gun and explosives sales, and kidnapping. The country’s borders would not be 

patrolled by the border patrol, with an extraordinary increase in illegal immigration as a predictable result. In the absence of government supervision, the stock 

markets, commodities and futures exchanges would be unable to operate. Meat 

and poultry would go uninspected by federal meat inspectors, and therefore could 

not be marketed. Were the federal government to shut down, medicare payments 

for vital operations and medical services would cease. VA hospitals would 
Government Operations in the Event of a Lapse in Appropriations 

3 

abandon patients and close their doors. These are simply a few of the significant 

impacts of a federal government shut down. Cumulatively, these actions and the 

others required as part of a true shutdown of the federal government would impose 

significant health and safety risks on millions of Americans, some of which would 

undoubtedly result in the loss of human life, and they would immediately result in 

massive dislocations of and losses to the private economy, as well as disruptions 

of many aspects of society and of private activity generally, producing incalculable amounts of suffering and loss. 

The Antideficiency Act imposes substantial restrictions on obligating funds or 

contracting for services in advance of appropriations or beyond appropriated 

levels, restrictions that will cause significant hardship should any lapse in 

appropriations extend much beyond those we have historically experienced. To be 

sure, even the short lapses that have occurred have caused serious dislocations in 

the provision of services, generated wasteful expenditures as agencies have closed 

down certain operations and then restarted them, and disrupted federal activities. 

Nevertheless, for any short-term lapse in appropriations, at least, the federal 

government will not be truly “shut down” to the degree just described, simply 

because Congress has itself provided that some activities of government should 

continue even when annual appropriations have not yet been enacted to fund 

current activities. 

The most significant provisions of the Antideficiency Act codify three basic 

restrictions on the operation of government activities. First, the Act implements 

the constitutional requirement that “No Money shall be drawn from the Treasury, 

but in Consequence of Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7. 

Second, when no current appropriations measure has been passed to fund contracts 

or obligations, it restricts entering into contracts or incurring obligations (except as 

to situations authorized by other law). Third, it restricts employing the services of 

employees to perform government functions beyond authorized levels to emergency situations, where the failure to perform those functions would result in an 

imminent threat to the safety of human life or the protection of property.3

 The 

1981 Opinion elaborated on the various exceptions in the Antideficiency Act that 

permit some continuing government functions, and we will only summarize the 

major categories here: 

Multi-year appropriations and indefinite appropriations. Not all government 

functions are funded with annual appropriations. Some operate under multi-year 

appropriations and others operate under indefinite appropriations provisions that 

do not require passage of annual appropriations legislation. Social security is a 

prominent example of a program that operates under an indefinite appropriation. 

 3

 These restrictions are enforced by criminal penalties. An officer or employee of the United States 

who knowingly and willfully violates the restrictions shall be fined not more than $5,000, imprisoned 

for not more than two years, or both. 31 U.S.C. § 1350 (1994). 
Supplemental Opinions of the Office of Legal Counsel 

4 

In such cases, benefit checks continue to be honored by the Treasury, because 

there is no lapse in the relevant appropriation. 

Express authorizations: contracting authority and borrowing authority.

Congress provides express authority for agencies to enter into contracts or to 

borrow funds to accomplish some of their functions. An example is the “food and 

forage” authority given to the Department of Defense, which authorizes contracting for necessary clothing, subsistence, forage, supplies, etc., without an appropriation. 41 U.S.C. § 11 (1994). In such cases, obligating funds or contracting can 

continue, because the Antideficiency Act does not bar such activities when they 

are authorized by law. As the 1981 Opinion emphasized, the simple authorization 

or even direction to perform a certain action that standardly can be found in 

agencies’ enabling or organic legislation is insufficient to support a finding of 

express authorization or necessary implication (the exception addressed next in the 

text), standing alone. 5 Op. O.L.C. at 4. There must be some additional indication 

of an evident intention to have the activity continue despite an appropriations 

lapse. 

Necessary implications: authority to obligate that is necessarily implied by 

statute. The 1981 Opinion concluded that the Antideficiency Act contemplates 

that a limited number of government functions funded through annual appropriations must otherwise continue despite a lapse in their appropriations because the 

lawful continuation of other activities necessarily implies that these functions will 

continue as well. 5 Op. O.L.C. at 5. Examples include the check writing and 

distributing functions necessary to disburse the social security benefits that operate 

under indefinite appropriations. Further examples include contracting for the 

materials essential to the performance of the emergency services that continue 

under that separate exception. In addition, in the 1980 Opinion, Attorney General 

Civiletti opined that agencies are by necessary implication authorized “to incur 

those minimal obligations necessary to closing [the] agency.” 4A Op. O.L.C. at 

20. The 1981 Opinion reiterated this conclusion, 5 Op. O.L.C. at 10 n.12, and 

consistent practice since that time has provided for the orderly termination of those 

functions that may not continue during a period of lapsed appropriations. 

Obligations necessary to the discharge of the President’s constitutional duties 

and powers. Efforts should be made to interpret a general statute such as the 

Antideficiency Act to avoid the significant constitutional questions that would 

arise were the Act read to critically impair the exercise of constitutional functions 

assigned to the Executive. In this regard, the 1981 Opinion noted that when 

dealing with functions instrumental in the discharge of the President’s constitutional powers, the “President’s obligational authority . . . will be further buttressed 

in connection with any initiative that is consistent with statutes—and thus with the 

exercise of legislative power in an area of concurrent authority—that are more 

narrowly drawn than the Antideficiency Act and that would otherwise authorize 
Government Operations in the Event of a Lapse in Appropriations 

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the President to carry out his constitutionally assigned tasks in the manner he 

contemplates.” 5 Op. O.L.C. at 6–7.4

Personal or voluntary services “for emergencies involving the safety of human life or the protection of property.” The Antideficiency Act prohibits 

contracting or obligating in advance of appropriations generally, except for 

circumstances just summarized above. The Act also contains a separate exception 

applicable to personal or voluntary services that deal with emergencies. 31 U.S.C. 

§ 1342. This section was amended in 1990. We will analyze the effects of that 

amendment in Part II of this memorandum. 

Finally, one issue not explicitly addressed by the 1981 Opinion seems to us to 

have been settled by consistent administrative practice. That issue concerns 

whether the emergency status of government functions should be determined on 

the assumption that the private economy will continue operating during a lapse in 

appropriations, or whether the proper assumption is that the private economy will 

be interrupted. As an example of the difference this might make, consider that air 

traffic controllers perform emergency functions if aircraft continue to take off and 

land, but would not do so if aircraft were grounded. The correct assumption in the 

context of an anticipated long period of lapsed appropriations, where it might be 

possible to phase in some alternatives to the government activity in question, and 

thus over time to suspend the government function without thereby imminently 

threatening human life or property, is not entirely clear. However, with respect to 

any short lapse in appropriations, the practice of past administrations has been to 

assume the continued operation of the private economy, and so air traffic controllers, meat inspectors, and other similarly situated personnel have been considered 

to be within the emergency exception of section 1342. 

II. 

The text of 31 U.S.C. § 1342, as amended in 1990, now reads: 

An officer or employee of the United States Government or of the 

District of Columbia government may not accept voluntary services 

 4

 The attorneys general and this office have declined to catalog what actions might be undertaken 

under this heading. In 1981, for example, Attorney General Civiletti quoted Attorney General (later 

Justice) Frank Murphy. “These constitutional powers have never been specifically defined, and in fact 

cannot be, since their extent and limitations are largely dependent upon conditions and circumstances. . . . The right to take specific action might not exist under one state of facts, while under another it 

might be the absolute duty of the Executive to take such action.” 1981 Opinion, 5 Op. O.L.C. at 7 n.9 

(quoting Request of the Senate for an Opinion as to the Powers of the President “in Emergency or 

State of War,” 39 Op. Att’y Gen. 343, 347–48 (1939)). This power should be called upon cautiously, as 

the courts have received such Executive Branch assertions skeptically. See, e.g., Youngstown Sheet & 

Tube Co. v. Sawyer, 343 U.S. 579 (1952); George v. Ishimaru, 849 F. Supp. 68 (D.D.C.), vacated as 

moot, No. 94-5111, 1994 WL 517746 (D.C. Cir. Aug. 25, 1994) (per curiam). But see Haig v. Agee, 

453 U.S. 280 (1981); In re Neagle, 135 U.S. 1 (1890). 
Supplemental Opinions of the Office of Legal Counsel 

6 

for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property. This section does not apply to 

a corporation getting amounts to make loans (except paid in capital 

amounts) without legal liability of the United States Government. As 

used in this section, the term “emergencies involving the safety of 

human life or the protection of property” does not include ongoing, 

regular functions of government the suspension of which would not 

imminently threaten the safety of human life or the protection of 

property. 

31 U.S.C. § 1342 (1994). Because of the section 1342 bar on employing personal 

services, officers and employees may employ personal services in excess of other 

authorizations by law only in emergency situations.5

 This section does not by itself 

authorize paying employees in emergency situations, but it does authorize entering 

into obligations to pay for such labor. 

The central interpretive task under section 1342 is and has always been to 

construe the scope of the emergencies exception of that section. When the 1981 

Opinion undertook this task, the predecessor to section 1342 did not contain the 

final sentence of the current statute, which was added in 1990. Examining that 

earlier version, the Attorney General concluded that the general language of the 

provision and the sparse legislative history of it did not reveal its precise meaning. 

However, the opinion was able to glean some additional understanding of the 

statute from that legislative history. 

The Attorney General noted that as originally enacted in 1884, the provision 

forbade unauthorized employment “except in cases of sudden emergency involving the loss of human life or the destruction of property.” 1981 Opinion, 5 Op. 

O.L.C. at 8 (quoting Act of May 1, 1994, ch. 37, 23 Stat. 15, 17) (emphasis 

deleted). He then observed that in 1950, Congress enacted the modern version of 

the Antideficiency Act and accepted revised language for section 1342 that 

originally had been suggested by the Director of the Bureau of the Budget and the 

 5

 The 1981 Opinion concluded that: 

[d]espite the use of the term ‘voluntary service,’ the evident concern underlying this 

provision is not government agencies’ acceptance of the benefit of services rendered 

without compensation. Rather, the original version of [section 1342] was enacted as 

part of an urgent deficiency appropriation act in 1884, Act of May 1, 1994, ch. 37, 23 

Stat. 15, 17, in order to avoid claims for compensation arising from the unauthorized 

provision of services to the government by non-employees, and claims for additional 

compensation asserted by government employees performing extra services after 

hours. This is, under [section 1342], government officers and employees may not involve government in contract for employment, i.e., for compensated labor, except in 

emergency situations. 30 Op. Att’y Gen. 129, 131 (1913). 

5 Op. O.L.C. at 8 (emphasis in original). 
Government Operations in the Event of a Lapse in Appropriations 

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Comptroller General in 1947. 5 Op. O.L.C. at 9. In analyzing these different 

formulations, the Attorney General stated that 

[w]ithout elaboration, these officials proposed that “cases of sudden 

emergency” be amended to “cases of emergency,” “loss of human 

life” to “safety of human life,” and “destruction of property” to “protection of property.” These changes were not qualified or explained 

by the report accompanying the 1947 recommendation or by any aspect of the legislative history of the general appropriations act for 

fiscal year 1951, which included the modern [section 1341]. Act of 

September 6, 1950, Pub. L. No. 81-759, § 1211, 64 Stat. 765. Consequently, we infer from the plain import of the language of their 

amendments that the drafters intended to broaden the authority for 

emergency employment. 

Id.

The 1981 Opinion also sought guidance from the consistent administrative 

practice of the Office of Management and Budget (“OMB”) in applying identical 

“emergencies” language found in another provision. That other provision prohibits 

OMB from apportioning appropriated funds in a manner that would indicate the 

need for a deficiency or supplemental appropriation, except in cases of “emergencies involving the safety of human life, [or] the protection of property”—

phraseology identical to the pre-1990 version of section 1342.6

 Combining these 

two sources with the statutory text, the Attorney General articulated two rules for 

identifying functions for which government officers may enter into obligations to 

pay for personal services in excess of legal authority other than section 1342 itself: 

 6

 31 U.S.C. § 1515 (recodified from section 665(e) at the time of the 1981 Opinion). Analyzing past 

administrative practice under this statute, Attorney General Civiletti found that: 

Directors of the Bureau of the Budget and of the Office of Management and Budget 

have granted dozens of deficiency reapportionments under this subsection in the last 

30 years, and have apparently imposed no test more stringent than the articulation of a 

reasonable relationship between the funded activity and the safety of human life or the 

protection of property. Activities for which deficiency apportionments have been 

granted on this basis include [FBI] criminal investigations, legal services rendered by 

the Department of Agriculture in connection with state meat inspection programs and 

enforcement of the Wholesome Meat Act of 1967, 21 U.S.C. §§ 601–695, the protection and management of commodity inventories by the Commodity Credit Corporation, and the investigation of aircraft accidents by the National Transportation Safety 

Board. These few illustrations demonstrate the common sense approach that has guided the interpretation of § 665(e). Most important, under § 665(e)(2), each apportionment or reapportionment indicating the need for a deficiency or supplemental appropriation has been reported contemporaneously to both Houses of Congress, and, in the 

face of these reports, Congress has not acted in any way to alter the relevant 1950 

wording of § 665(e)(1)(B), which is, in this respect, identical to § 665(b). 

1981 Opinion, 5 Op. O.L.C. at 9–10 (footnotes omitted). 
Supplemental Opinions of the Office of Legal Counsel 

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First, there must be some reasonable and articulable connection between the function to be performed and the safety of human life or 

the protection of property. Second, there must be some reasonable 

likelihood that the safety of human life or the protection of property 

would be compromised, in some degree, by delay in the performance 

of the function in question. 

5 Op. O.L.C. at 8. 

While we continue to believe that the 1981 articulation is a fair reading of the 

Antideficiency Act even after the 1990 amendment, see 1993 Letter, we are aware 

of the possibility the second of these two rules might be read more expansively 

than was intended, and thus might be applied to functions that are not emergencies 

within the meaning of the statute. To forestall possible misinterpretations, the 

second criteria’s use of the phrase “in some degree” should be replaced with the 

phrase, “in some significant degree.” 

The reasons for this change rest on our understanding of the function of the 

1990 amendment, which comes from considering the content of the amendment, 

its structure, and its sparse legislative history. That history consists of a solitary 

reference in the conference report to the Omnibus Budget Reconciliation Act of 

1990, Pub. L. No. 101-508, 104 Stat. 1388: 

The conference report also makes conforming changes to title 31 of 

the United States Code to make clear that . . . ongoing, regular operations of the Government cannot be sustained in the absence of appropriations, except in limited circumstances. These changes guard 

against what the conferees believe might be an overly broad interpretation of an opinion of the Attorney General issued on January 16, 

1981, regarding the authority for the continuance of Government 

functions during the temporary lapse of appropriations, and affirm 

that the constitutional power of the purse resides with Congress. 

H.R. Rep. No. 101-964, at 1170 (1990). While hardly articulating the intended 

scope of the exception, the conference report does tend to support what would 

otherwise be the most natural reading of the amendment standing alone: because it 

is phrased as identifying the functions that should be excluded from the scope of 

the term “emergency,” it seems intended to limit the coverage of that term, 

narrowing the circumstances that might otherwise be taken to constitute an 

emergency within the meaning of the statute. 

Beyond this, however, we do not believe that the amendment adds any significant new substantive meaning to the pre-existing portion of section 1342, simply 

because the most prominent feature of the addition—its emphasis on there being a 

threat that is imminent, or “ready to take place, near at hand,” see Webster’s Third 

New International Dictionary 1130 (1986)—is an idea that is already present in 
Government Operations in the Event of a Lapse in Appropriations 

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the term “emergency” itself, which means “an unforeseen combination of 

circumstances or the resulting state that calls for immediate action” to respond to 

the occurrence or situation. Id. at 741.7

 The addition of the concept of “imminent” 

to the pre-existing concept of “emergency” is thus largely redundant. This 

redundancy does, however, serve to emphasize and reinforce the requirement that 

there be a threat to human life or property of such a nature that immediate action is 

a necessary response to the situation. The structure of the amendment offers 

further support for this approach. Congress did not alter the operative language of 

the statute; instead, Congress chose to enact an interpretive provision that simply 

prohibits overly expansive interpretations of the “emergency” exception. 

Under the formulation of the 1981 Opinion, government functions satisfy 

section 1342 if, inter alia, the safety of human life or the protection of property 

would be “compromised, in some degree.” 5 Op. O.L.C. at 8. It is conceivable that 

some would interpret this phrase to be satisfied even if the threat were de minimis, 

in the sense that the increased risk to life or property were insignificant, so long as 

it were possible to say that safety of life or protection of property bore a reasonable likelihood of being compromised at all. This would be too expansive an 

application of the emergency provision. The brief delay of routine maintenance on 

government vehicles ought not to constitute an “emergency,” for example, and yet 

it is quite possible to conclude that the failure to maintain vehicles properly may 

“compromise, to some degree” the safety of the human life of the occupants or the 

protection of the vehicles, which are government property. We believe that the 

revised articulation clarifies that the emergencies exception applies only to cases 

of threat to human life or property where the threat can be reasonably said to the 

near at hand and demanding of immediate response. 

 WALTER DELLINGER 

 Assistant Attorney General 

 Office of Legal Counsel 

 7 See also Random House Dictionary of the English Language Unabridged 636 (2d ed. 1987) 

(“emergency” means “a sudden, urgent, usually unexpected occurrence or occasion requiring 

immediate action”); Webster’s II New Riverside University Dictionary 427 (1988) (“an unexpected, 

serious occurrence or situation urgently requiring prompt action”).