WASHINGTON — President Donald Trump's administration warned Tuesday of no guaranteed back pay for federal workers during a government shutdown, reversing what was long-standing policy for some 750,000 furloughed employees, according to a memo being circulated by the White House.
After the longest government shutdown in 2019, Trump signed legislation that ensures federal workers receive back pay during a federal funding lapse. But in the new memo, his Office of Management and Budget says back pay must be provided by Congress, if it chooses to do so, as part of a bill to fund the government.
The move by the Republican administration was widely seen as a strong-arm tactic — a way to pressure lawmakers to reopen the government, now in the seventh day of a shutdown.
"There are some people that don't deserve to be taken care of, and we'll take care of them in a different way," Trump said during an event at the White House.
He said back pay "depends on who we're talking about."
Refusing retroactive pay to the workers, some of whom must remain on the job as essential employees, would be a stark departure from norms and practices and almost certainly would be met with legal action.
While federal workers — as well as service members of the military — have often missed paychecks during past shutdowns, they are almost always reimbursed once the government reopens.
"That should turn up the urgency and the necessity of the Democrats doing the right thing here," House Speaker Mike Johnson said at a news conference at the Capitol.
But Democratic Sen. Patty Murray of Washington blasted the Trump administration as defying the law.
"Another baseless attempt to try and scare & intimidate workers by an administration run by crooks and cowards," said Murray, who is the ranking lawmaker on the Senate Appropriations Committee. "The letter of the law is as plain as can be — federal workers, including furloughed workers, are entitled to their back pay following a shutdown."
Asked a second time about back pay for furloughed federal workers given that the requirement is spelled out in law, Trump said: "I follow the law, and what the law says is correct."
In a single-page memo from Trump's Office of Management and Budget under Russ Vought, first reported by Axios, the office's general counsel seeks to lay out a legal rationale for no back pay of federal workers.
The memo claims that while the Government Employee Fair Treatment Act of 2019 says workers shall be paid after federal funding is restored, it argues the action is not self-executing. Instead, the memo says, repaying the federal workers would have to be part of legislation to reopen the government.
The OMB analysis draws on language familiar to budget experts by suggesting that the 2019 bill created an authorization to pay the federal workers but not the actual appropriation.
Congress, it says, is able to decide whether it wants to pay the workers or not.
For now, Congress remains at a standstill, with neither side — nor the White House — appearing willing to budge. Democrats are fighting for health care funds to prevent a lapse in federal subsidies that threaten to send insurance rates skyrocketing. Republicans say the issue can be dealt with later.
Democrats believe health care is an issue that resonates with a majority of Americans as they demand an extension of subsidies for their votes to reopen the shuttered U.S. government. But it is also one of the most intractable issues in Congress — and a real compromise is unlikely to be easy, or quick.
"Democrats' position has not changed," said Senate minority leader Chuck Schumer, D-N.Y. "We want the same thing that a majority, an overwhelming majority, of Americans want, which is to end this shutdown and halt the health care crisis that will send premiums spiking for tens of millions of people."
There are some Republicans in Congress who want to extend the higher subsidies, which were first put in place in 2021 amid the COVID-19 pandemic, as millions of people who receive their insurance through the Affordable Care Act marketplaces are set to receive notices that their premiums will increase at the beginning of the year.
But many GOP lawmakers strongly oppose any extension — and see the debate as a new opportunity to cut back on the program.
"If Republicans govern by poll and fail to grab this moment, they will own it," wrote Texas Rep. Chip Roy, a Republican, in a letter published in the The Wall Street Journal over the weekend.
Republicans have railed against the Affordable Care Act, former President Barack Obama's signature health care law, since it was enacted 15 years ago. But while they have been able to chip away at it, they have not been able to substantially alter it as a record 24 million people are now signed up for insurance coverage through the ACA, in large part because billions of dollars in subsidies made the plans more affordable for many people.
