As the federal courts approach the point where all non-appropriated funds are expended, which remaining employees are essential becomes a heart-breaking question. STOP!

Reject the premise of the question. Given the loss of employees already suffered by the judiciary on account of the sequester and otherwise, why shouldn’t every remaining employee of every federal district court (including FPD employees) be declared “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 Anit-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 be failing to pass a budget. Or, Congress could go batshit, and the judiciary and Congress could have it out.

As I said, there is strong support for such a declaration. One Senator prominent in judiciary matters has even made an admission that such a decision should go unchallenged because it is entirely justified:

Senator Chris Coons (D-Del.), chairman of the Senate Subcommittee on Bankruptcy and the Courts, said the shutdown has made it challenging to learn more about how exactly the shutdown will harm the courts. In an interview with The National Law Journal on Friday, Coon said furloughs in his office have hampered communication with the judiciary officials.

Coons, who held an oversight hearing on court funding earlier this year, said the federal courts have been under significant stress through budget reductions already. He said he wouldn’t challenge district court officials who, this week, decide that every remaining employee is essential. Two courts have already made that determination.

Todd Ruger and Zoe Tillman, Lawmakers Sound Alarm Over Shutdown’s Blow to Judiciary, The BLT: The Blog of Legal Times, October 5, 2013. (Emphasis added.)

It is time to tell Congress to go to hell. It’s the right thing to do.

RGK