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Based on a comment by mcalex on How does a shutdown end if an agreement is never reached?:

Only non-essential services are shut down atm. None of the answers seem to talk about what happens once current appropriations for essential services run out. Can this happen (say, at the end of the 18/19 FY)? And if so, would it affect given answers?

So, can the appropriations for essential services run out? And what's next if this happens?

Nzall
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Appropriations for essential services in departments without appropriations have run out. Essential services are being performed without pay, by employees who trust that eventually the shutdown will end and people will receive back pay for their essential services. They would probably have the right to sue the government for the essential services they performed without pay if push came to shove.

Roughly 800,000 federal employees aren't being paid and a bit more than half of them are deemed "essential."

ohwilleke
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  • Has the US waived its sovereign immunity for suits such as that? – phoog Jan 07 '19 at 22:10
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    @phoog Sovereign immunity doesn't apply to claims for breach of contract, although such claims must be filed in the Court of Claims rather than in District Court. – ohwilleke Jan 07 '19 at 22:49
  • This is half of it, but there's also the question of contracted services/purchased materials from vendors. I'd assume somewhere in the Anti-deficiency Act there is an exception for obligating funds that haven't been appropriated if the obligation is for an exempted service, but I haven't seen any discussion about this. – IllusiveBrian Jan 07 '19 at 23:14
  • @IllusiveBrian Not sure that there is. I think vendors get stiffed like everyone else. – ohwilleke Jan 07 '19 at 23:50
  • Doesn't the Anti-Deficiency Act prohibit the government from contractually obligating itself to pay? – Acccumulation Jan 08 '19 at 19:00
  • @Acccumulation The constitution's contracts clause prohibits the government from unilaterally breaching a contract and it can have contracts in force with vendors and employees that can only be terminated in particular ways which a lack of an appropriation doesn't change. – ohwilleke Jan 08 '19 at 21:49
  • @Acccumulation The idea is somewhat analogous to the idea that the government can be sued in an inverse condemnation suit even when it couldn't win a condemnation suit in the first place, or that the government can be sued for civil rights violations successfully even if funds weren't appropriated to pay for the damages award in a case like that. – ohwilleke Jan 08 '19 at 22:02
  • @Acccumulation A federal employee’s entitlement to pay typically comes from statute, not a contract. – cpast Jan 10 '19 at 02:17
  • @cpast Lots of federal employees are in unions which have collective bargaining agreements with the federal government which are contracts. – ohwilleke Jan 10 '19 at 05:24
  • @ohwilleke: The Contracts Clause only prohibits the state governments from unilaterally breaching contracts. It has no effect on the national government. – Vikki Jan 17 '19 at 00:24
  • @cpast My comments were in response to ohwilleke's claim that it comes from contract (although breach of contracts laws are statutes, so ultimately it would come from statute either way). And if the entitlement comes from statute, that would raise the question of why the statute doesn't violate the Anti-Deficiency Act. – Acccumulation Jan 20 '19 at 18:34