Democrats are becoming increasingly angered by the Trump administration’s decision to call back furloughed federal workers, without pay, while the shutdown persists.

More and more workers at agencies with funding lapses are being told to report back to work, and in many cases the employees won’t be paid until after the shutdown ends. Democrats worry that furloughed workers are being recalled on a piecemeal basis in order to further President Trump Donald John TrumpObama calls on Senate not to fill Ginsburg's vacancy until after election Planned Parenthood: 'The fate of our rights' depends on Ginsburg replacement Progressive group to spend M in ad campaign on Supreme Court vacancy MORE’s political goals.

ADVERTISEMENT

“To force them to come back to work for no pay, it’s ridiculous,” said Sen. Tim Kaine Timothy (Tim) Michael KaineBiden promises Democratic senators help in battleground states Second GOP senator to quarantine after exposure to coronavirus The Hill's Morning Report - Sponsored by The Air Line Pilots Association - Pence lauds Harris as 'experienced debater'; Trump, Biden diverge over debate prep MORE (D-Va.), who represents a state with tens of thousands of federal employees. “And it’s the president deciding which agencies he likes and which he doesn’t. That’s our job, not his.”

The partial government shutdown, already the longest in U.S. history, is nearing the one-month mark with no end in sight. About 800,000 federal workers have been furloughed or are working without pay.

Under the Antideficiency Act, federal employees at agencies with funding lapses can perform work only if it’s necessary to protect human life and property or it is otherwise authorized by law, such as activities supported by multiyear appropriations.

In recent days, the Trump administration has been bringing more federal employees back to work, often without pay, in an effort to minimize the shutdown’s pain on people across the country. Agencies where furloughed workers have been told to return include the IRS, Agriculture Department and Federal Aviation Administration.

The Office of Management and Budget (OMB) said it is having federal employees work in ways that are consistent with law.

“Pursuant to longstanding — and legally binding — opinions from the Department of Justice going back nearly 40 years, there are certain exceptions to the Antideficiency Act that allow for excepted work to occur regardless of a lapse,” said OMB spokesman Brad Bishop.

ADVERTISEMENT

“The Administration is applying a meticulous and thoughtful process — on a case-by-case basis — when interpreting this guidance to make legal determinations that help preserve government programs until Congressional Democrats send the President an acceptable bill that both re-opens the government and provides proper border security for the American people,” he added.

But some Democratic lawmakers, legal experts and unions representing federal employees have questioned the administration’s legal reasoning.

Richard Loeb, senior policy counsel at the American Federation of Government Employees, said he’s seen interpretations of which employees can be brought back without pay “that raise issues of good faith compliance with the Antideficiency Act.”

One aspect that’s in dispute is the administration’s determination that the IRS can issue tax refunds during the shutdown. In 2011, OMB directed the IRS not to issue refunds in the event of a funding lapse. This month the IRS cited a permanent appropriation when saying it has long been of the belief that it can distribute refunds, and that OMB has reviewed the law and determined that the agency can pay refunds during the shutdown.

Charles Tiefer, a law professor at the University of Baltimore who served as deputy general counsel of the House in the 1980s and 1990s, said he’s concerned that the administration is bringing back employees without pay “who are not in any way emergency personnel.”

He also expressed concern that in cases where employees are being recalled and will be paid because additional funds were found, like at the State Department, the money may be coming from funds that have lapsed.

Democrats are also worried the administration is declaring workers essential in circumstances where they are facing pressure from the public or specific industries.

“Is that how we’re going to do business? If you get a powerful lobby behind you, your workforce might be lucky enough to be called back to work,” said Rep. Gerry Connolly Gerald (Gerry) Edward ConnollyJudge issues nationwide injunction against Postal Service changes House panel advances bill to ban Postal Service leaders from holding political positions Shakespeare Theatre Company goes virtual for 'Will on the Hill...or Won't They?' MORE (D), whose district in Northern Virginia is home to many government workers.

Rep. Lloyd Doggett Lloyd Alton DoggettTrump order on drug prices faces long road to finish line Trump signs new executive order aimed at lowering drug prices Overnight Health Care: Fauci says family has faced threats | Moderna to charge to a dose for its vaccine | NYC adding checkpoints to enforce quarantine MORE (D-Texas) said that when the administration senses “harm to the public of what they’re doing, that they try to ease the harm by having employees come back and be unpaid to do that work.”

There are also concerns about the financial situation of federal employees who are working without pay.

“A lot of these federal workers have had to take on temporary, part-time jobs,” Rep. Susan Wild Susan WildDCCC reserves new ad buys in competitive districts, adds new members to 'Red to Blue' program The Hill's Morning Report - Presented by Facebook - Trump, GOP on defense as nationwide protests continue Republican Lisa Scheller wins primary to take on Pennsylvania Rep. Susan Wild MORE (D-Pa.). “And if they’re called back to work, that means that they can’t work those temporary, part-time jobs they’re relying on to bring in a few dollars.”

Democrats are primarily arguing that the way to best help employees returning to work without pay is to get legislation enacted to fully reopen the government.

Democrats are pressuring Senate Majority Leader Mitch McConnell Addison (Mitch) Mitchell McConnellObama calls on Senate not to fill Ginsburg's vacancy until after election Planned Parenthood: 'The fate of our rights' depends on Ginsburg replacement Progressive group to spend M in ad campaign on Supreme Court vacancy MORE (R-Ky.) to take up the House-passed government funding measures. McConnell has said he will bring such measures to the floor for a vote only if it’s clear Trump will sign them.

The president has signed legislation to provide back pay to federal employees once the shutdown ends. In an effort to help federal workers in the meantime, a group of House Democrats has offered a bill that would require the Treasury Department to issue interest-free loans of up to $6,000 to federal workers affected by the shutdown.

House Republicans, for their part, offered a motion on Thursday to keep the government closed while allowing federal workers to get their first paycheck of the year. The motion failed, with Democrats saying that the government needs to be fully reopened.

Republicans argue that Democrats are the ones responsible for workers going without pay, since they aren’t negotiating with Trump on a proposed wall along the U.S.-Mexico border.

“Federal employees should not suffer because [of] the Democrats’ refusal to negotiate,” House Appropriations Committee ranking member Kay Granger Norvell (Kay) Kay GrangerBottom line Helping our seniors before it's too late House approves .3 trillion spending package for 2021 MORE (R-Texas) said on the House floor Thursday when offering the GOP motion.

Oversight from Democrats about how the administration is treating federal workers is likely to come once the shutdown is over.

“I think they’ll be a lot of post-mortem examination about what happened and how they comported themselves and decisions that were made, some of which are bound to be determined as extrajudicial,” Connolly said.