Judge: “Tell Congress to Go to Hell”

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This is one of those judges who's appointed for life, but my guess is he'd say what he wants to say regardless.

On his blog Hercules and the Umpire, U.S. District Judge Richard Kopf (D. Neb.) explained a couple of weeks ago that if there were no federal budget deal, then the courts would have to comply with the "Anti-Deficiency Act," which prohibits federal employees from spending money or incurring an obligation to do so before the funds have been appropriated. (There are actually criminal penalties for violating this law.) The federal courts have established "shutdown plans"—a smart call given the unlikelihood of grownup behavior in Washington—which provide that only "essential" activities can continue and only "essential" employees retained. Obviously that could require some difficult choices.

On October 7, as it became clear that funds were going to run out, Judge Kopf argued that at least given the cuts the judiciary branch has already suffered, it should just declare everybody left at this point to be essential:

If the Chief Judge, and all the district judges, issued an order so stating, the Clerk of Court, the Federal Public Defender and all the other Unit Executives, would be protected from prosecution under the Anti-Deficiency Act. Furthermore, there is a strong argument for such a declaration. Best of all, such an order would set up an inter-branch dispute worth having.

Given such an order, Congress would have two choices. It could do nothing in which event Congress loses its ability to destroy the judiciary by failing to pass a budget. Or, Congress could go batshit, and the judiciary and Congress could have it out.

That's worth posting just for the pleasure of seeing a senior federal judge use the word "batshit." I'm surprised to find out that I have only used it once, but it's a great word.

Kopf noted that at least two courts had already declared all their employees to be essential, and that at least one senator had said he wouldn't challenge such determinations if they were made (he is on the Subcommittee on Bankruptcy and the Courts, so his view is relevant). So "[i]t is time to tell Congress to go to hell," the judge concluded. "It's the right thing to do."

It looks like when the time actually came, the chief judge of the district decided not to do that, at least not in so many words. The actual shutdown recommendation says that each employee will be furloughed for one day per pay period beginning on October 21 (if there's still no budget). But as far as I can tell, nobody is actually being let go. In effect, everybody has been declared essential 14/15ths of the time. I like that result too.