The union lawsuit argues that the government must pay certain employees deemed “essential” and forced to work without pay during the shutdown. | Natalie Behring/Getty Images government shutdown Federal judge sides with Trump, allowing workers to go unpaid during shutdown

A federal judge declined to stop the Trump administration from requiring government employees to work without pay during the shutdown, rejecting the arguments of two federal unions and other individual federal employees.

In a hearing Tuesday, District Judge Richard J. Leon refused to grant temporary restraining orders requested the National Treasury Employees Union, the National Air Traffic Controllers Association, and a group of individual federal employees. The unions argued that the government could not force employees deemed “essential” to work without pay during the shutdown.


Lean declined to grant the orders, saying they would “create chaos and confusion” in an already fraught environment.

“It’s hard not to empathize with the plaintiffs,” Leon said, adding that “the judiciary is not, and will not, be leverage in the internal struggle between the branches of government.”

NTEU argued that the government may not make employees work without pay except in cases of “imminent threat to human life or property,” as defined in the post-Civil War Antideficiency Act. To do so, the lawsuit said, amounted to the executive branch spending money that hadn’t been appropriated by Congress.

The judge also denied the National Air Traffic Controllers Association's request for an order that sought to compel the government to pay air traffic controllers who have been working without pay since the shutdown began on Dec. 22. Molly Elkin, a lawyer representing the union, argued that the controller workforce was being deprived of property without due process, and asked the judge to "drop your legal hammer" on the feds.

NATCA's request for a preliminary injunction is still in play, and the judge said that would be heard later this month.

Multiple unions sued the administration in recent days as the government shutdown became the longest in American history and federal workers missed their first paychecks. NTEU and the National Federation of Federal Employees filed separate lawsuits arguing that requiring government employees to work without pay violated federal minimum wage and overtime laws. Those lawsuits argue that employees must be paid at least the hourly minimum wage of $7.25 during a shutdown, in addition to eligible overtime.

The shutdown, now in its 25th day, is beginning to fracture the government workforce. On Monday, two major international airports — Washington Dulles and Atlanta's Hartsfield-Jackson International Airport — were forced to close screening lanes as TSA agents failed to show up for work. Miami International and Houston’s George Bush Intercontinental Airport similarly announced checkpoint closures over the weekend because of a higher-than-usual rate of no-shows.

The FAA has started to recall thousands of safety inspectors and other furloughed employees. An updated Transportation Department document published Tuesday showed 3,600 more FAA employees back at work compared to when the shutdown started in December.

Stephanie Beasley, Sam Mintz and Brianna Gurciullo contributed to this report.