DC Leaders Might Break the Law to Make Sure the Garbage Gets Picked Up

If Congress can’t get its act together, and the federal government grinds to a halt next Tuesday over some Republicans’ quixotic attempt to ice President Obama’s health care law, many DC government services would also be cut off. That is, unless, District leaders decide that keeping the local government open is worth risking jail time.

The federal government’s current fiscal year expires next Monday, and, as has become normal over the past few years, Congress is barreling into the void without a plan to keep the government funded past the deadline, though the government hasn’t actually had to shut down since 1995. But a vow by Congressional Republicans to block any spending plan unless the Affordable Health Care is defunded has this shutdown threat feeling more ominous than the last few. And, under the law, if the federal government shuts down its non-essential services, most of the DC government goes with it, an uncomfortable effect of the District not being permitted to spend its own funds without Congressional approval.

That was the topic for much of today’s breakfast meeting between DC Mayor Vince Gray and the DC Council. Gray advised city lawmakers that a federal government shutdown would mean residents would lose out on many services not considered “essential.” Police and firefighters would stay on the job, schools would remain open, Medicaid and food stamp payments would continue to be disbursed, and city-run hospitals would stay open. But trash collection would be stopped for at least a week, and then happen only biweekly; libraries would be shuttered, just as they are scheduled to start running longer hours; non-emergency street repairs would stop; Circulator bus routes would shut down; and businesses would not be able to obtain permits or licenses.

“We’re being pulled into a process we should never have been in in the first place,” Gray said at the breakfast, according to the Washington Post. But for 45 minutes, several members of the Council urged Gray to push back against a potential federal shutdown, even if doing so constituted a breach of federal law.

Council member David Catania, who runs the Education Committee, was something of the ringleader. “Let’s do what the rest of the country is doing with respect to this Congress: ignore it,” he said. Catania and other members asked Gray to declare all DC government employees “essential personnel.”

Because DC is essentially considered a largely non-essential federal agency in a shutdown situation, following Catania’s inclination would technically put the District’s leaders in violation of the Anti-Deficiency Act, a federal law that prohibits the distribution of funds that are not appropriated. DC Attorney General Irv Nathan, playing the role of bad cop, warned the Council members if the federal government shuts down but DC keeps going at full strength, they—along with the mayor—could face fines or jail time.

Still, the meeting ended with many Council members, and perhaps even the mayor, ready to play their own game of budgetary chicken. “DC is the only local jurisdiction impacted in this manner and one thing is true, if DC were San Antonio, there would be a battle at the Alamo over this,” Council member David Grosso said in a news release.

Shortly after the meeting ended, Gray scrapped a press conference he had planned to hold with Delegate Eleanor Holmes Norton about a potential government shutdown’s ramifications on the capital city. Gray’s office the mayor postponed the event to “reconsider our options for responding to a federal shutdown.” Meanwhile, Council Chairman Phil Mendelson said he will introduce legislation to declare all DC government workers essential and move it through the legislative process as quickly as possible.

However, the earliest Mendelson can bring up his legislation is next Tuesday, October 1, when, if Congress duffs it on a spending plan, the federal and DC governments would be be in the first hours of a shutdown. Mendelson plans to bring up his personnel bill as an “emergency” act, his spokeswoman Karen Silbert said.

But assuming this all plays out as described, there is still the matter of the Anti-Deficiency Act. However, the law, which dates back to 1884, has had a mostly toothless history. “While the statute allows for criminal penalties, no case has been documented in which anyone has been prosecuted for, much less convicted of, a violation of the Anti-Deficiency Act,” William G. Arnold, a former Defense Department procurement officer, writes in a 2009 guide to compliance with the statute. And there usually needs to be malicious intent. “First, the Justice Department will not normally go after an individual unless he or she has personally benefited from the transaction,” Arnold writes.

Few would consider keeping vital city services up and running an act of malfeasance, but if the federal government goes into shutdown mode, Mendelson’s bill passes the Council, and Gray signs it into law, the mayor and District employees could be prosecuted. Gray has taken a handcuffing to make a point about the District’s relegated status before, such as when he and members of the Council were arrested in April 2011 after staging a Capitol Hill protest over a federal budget deal imposing several social policy riders on DC.

Would the mayor risk being the first person prosecuted under a 129-year-old law? It’s unclear just how far Gray plans to push back against a shutdown. But, his spokesman Pedro Ribeiro says, “There’s a first time for everything.”

Benjamin Freed

Staff Writer

Benjamin Freed joined Washingtonian in August 2013 and covers politics, business, and media. He was previously the editor of DCist and has also written for Washington City Paper, the New York Times, the New Republic, Slate, and BuzzFeed. He lives in Adams Morgan.