MARK R. WARNER comer Wnited States Senate suooet WASHINGTON, D¢ 20510-4606 ww ULES ANO ADMANSTRATION Jan. 22, 2019 ‘The Honorable Steven Mauchin Secretary Department of the ‘Treasury 1500 Pennsylvania Ave., NW Washington, DC 20220 Dear Secretary Mnuchin, Iiwrite to voice my concerns about the context in which the Treasury Department has recently recalled furloughed employees and to ask for the legal justification behind such actions to ensure accordance with Congress's constitutionally-delegated powers as well as the Anti-Deficiency Act. Government shutdowns are never good, the current one being no exception, and they never produce positive results. Our hard-working federal employees deserve to be paid for their work, and to be paid in a timely manner rather than waiting weeks, months, or even years for a shutdown to end. Rather than finding ways to minimize the impact of the current government shutdown, and straining legal bounds to do so, it is my strong belief that the best way to fix the current situation is to simply end the shutdown, For context, I believe it is important to note relevant laws that apply under the current circumstances. First, Congress's power of the purse is made clear by the constitutional requirement that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”! Second, in situations where no appropriations measure has been passed by Congress (such as the current situation), the Anti-Deficiency Act “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.” As you know, when the government entered the current partial shutdown on Dee. 22, 2018, affected federal agencies were required to follow particular procedures, in accordance with the 2U,S, Const. art. I, §9, cl. 7. 2 DOI Office of Legal Counsel's “Government Appropriations in the Event ofa Lapse in Appropriation Supplemental Opinions of the OLC (1995), p. 3 In relevant part, the Anti-Deficiency Act reads: “An officer or ‘employee ofthe United States Government or ofthe District of Columbia government may not accept voluntary services 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... As used in tis 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. 1law, to furlough large numbers of their employees while deeming others essential (or “excepted”) to allow them to continue performing critical functions despite not receiving pay. Yet on January 7, 2019, your department recalled hundreds of IRS employees to do routine work of processing tax transcripts used to verify borrowers’ incomes before they are granted home loans. This decision was taken, reportedly, after direct lobbying from top mortgage industry officials. Unlike other federal employees who are not getting paid, it has been reported that Treasury is using a highly unorthodox method of temporarily funding the IRS clerks’ salaries through industry user fees, when they are normally funded through congressional appropriations.* ‘The Department's authority to abide by Congressional direction of resources to these activities under normal circumstances is clear. Under current circumstances, however, it is unclear that these activities could be described as “emergencies involving the safety of human life or the protection of property” that would allow for excepted employees to perform these duties while Congress has not appropriated funding for your agency. For these reasons, I ask that you provide a response to the following questions as soon as possible. ‘* What circumstances changed between Dec. 22 and Jan. 7 that prompted you to change plans and return furloughed employees to conduct routine work of processing tax transcripts? ‘* How do the Department's activities identified above comply with the Anti-Deficiency Act, where “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” * Does the Administration continue to consider the opinion of DOJ’s Office of Legal Counsel, “Authority for the Continuance of Government Functions During a Temporary Lapse in Appropriations,” 5 Op. O.L.C. I (1981) as modified by the OLC’s “Government Appropriations in the Event of a Lapse in Appropriations,” Supplemental Opinions of the OLC (1995) (the two opinions together, the “OLC Opinions”), to be the Administration's interpretation of the permissible scope of government operations during a lapse in appropriations? Does the Administration still consider this OLC guidance authoritative? © If not, are there additional OLC opinions on which the Administration is relying when making determinations about which employees are excepted? Please provide us with a copy of any subsequent guidance on which the Administration has relied or now considers authoritative ‘© How are the Department’s recent decisions identified above consistent with the views expressed in the OLC Opinions? > Could you make these guys essential?": Mortgage industry gets shutdown relief after appeal to senior Treasury atolin” Lin en sod it Bn, Woohinghen Pet So, 11,28, https.//www, washingtonpost com/polities/c talctaferaupealto senor neanseoffeaiseGfotiL Tae ae 136fa44b80ba_story.him!Putm_term=,9d129bS9475e,‘* Has any White House, DOJ or Office of Management and Budget (OMB) employee provided any formal or informal guidance or instructions to the Department relating to the operation of agencies during a shutdown subsequent to the December 22, 2018 guidance entitled “Special Instructions for Agencies Affected by a Possible Lapse in Appropriations Starting on December 22, 2018"? (© Please provide us with a copy of any such written guidance, or a description of any guidance or instructions, © Please provide us with any Department justification for changes in guidance ot instructions since December 22, 2018. * Has any White House, OMB or agency legal counsel made any determinations or issued any guidance since December 1, 2018, regarding the employees or groups of employees who would be considered excepted or “non-excepted” for purposes of the Anti- Deficiency Act? © Please provide us with a copy of any such determinations or guidance. © Please provide us with any Department justification for changes in determinations or guidance issued since December 22, 2018. It is important that the Administration respect the proper roles of each branch of government, particularly Congress's power of the purse, as well as the laws that Congress has passed. The current situation should not give the Administration license to substitute its own determination of proper spending priorities for that of Congress, as has been made clear through passage of the Anti-Deficiency Act. Thank you for your attention to this matter. I look forward to hearing your response to the above ‘questions as soon as possible. Sincerely, Mt R Mmez MARK R. WARNER, United States Senator