Ag Policy Blog

FSA Reopening, the Law, and the Ongoing Shutdown

Chris Clayton
By  Chris Clayton , DTN Ag Policy Editor
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USDA will reopen its Farm Service Agency offices on Thursday on a full-time basis and offer a broader list of services.

This is a good thing for FSA's farmer and rancher customers. They'll be able to get their loan questions addressed, get necessary paperwork done for other USDA programs and deal with trade aid or disaster relief.

USDA is taking care of an important constituency and lifting some burden and angst off the shoulders of farmers and ranchers caught up in the partial government shutdown. For those 9,700 or so FSA employees? They'll get back to work, and their checking accounts will return to stability like other federal workers when the shutdown fight finally ends.

Secretary Sonny Perdue and USDA officials cited a decision from the White House Office of Management and Budget to conclude the department has the authority to reopen FSA offices, at least full-time for the next couple of weeks, despite the lack of congressional appropriations and funding.

As the saying goes, it's better to beg for forgiveness than ask permission.

The Washington Post, Bloomberg and other news outlets have reported similar situations at different departments and agencies. The IRS recalled 30,000 workers law week, though hundreds are calling in sick because of financial hardship. The director of the Transportation Security Administration tweeted repeatedly Wednesday that he was directly leadership to find ways to provide more support and relief "within existing legal and financial parameters" for TSA workers.

Then there are the "what about us?" people. If this agency can reopen for these folks, why can't that agency reopen to provide what I want? At least one market analyst on Twitter wondered why USDA's Foreign Agricultural Service can't reopen to provide updates on agricultural sales. Another person emailed me asking a similar question.

USDA's decision on FSA drew praise. The American Farm Bureau Federation and National Farmers Union each thanked the secretary and USDA employees to restoring services to farmers, as did the National Cotton Council. Sens. John Hoeven and Kevin Cramer, both North Dakota Republicans, thanked USDA as well. As Cramer stated, “Once again, Secretary Perdue is finding ways to provide relief to our farmers and ranchers who are hurt by Democrats’ refusal to reopen the government. While President Trump and Republicans in Congress continue to work to fund the government, our agricultural community will now have more stability and peace of mind, even during this partial shutdown, and I commend the administration for making them a priority.”

But Sen. Mark Warner, D-Va., raised questions about the legality of USDA, Interior, Treasury, Transportation, the State Department and the IRS all recalling employees to work without pay. Warner wrote letters to each agency head, reminding them that Congress holds the power of the purse, not the executive branch, as detailed in Article I, Section 9 of the Constitution. There's also a law called the Anti-Deficiency Act, dating back to 1884, but last updated in 1982. Warner notes the act "restricts employing the services of employees to perform government functions beyond authorized levels to emergency situations, where the failure to perform these functions would result in imminent threat to the safety of human life or the protection of property."

And with that, Warner wants to know the legal justification for bringing back FSA workers and what constitutes the imminent threat to human life or property protection that requires bringing them back.

After all of this is said and done, and when USDA officials again testify before Congress, the legality here will come into focus.

Government shutdowns, though, are supposed to be inconvenient and uncomfortable. It's supposed to force everybody to demand resolution. This federal shutdown, at first, was easy to tolerate because it hit during the holidays, but we're 23 days into the new year and no closer to a deal and neither side right now seems willing to negotiate aggressively. Yet, no meaningful compromise between the two disputed parties can come if parts of the federal government just reopen certain functions to favored constituents under suspect legal authority while requiring strapped federal employees to work unpaid.

Until a deal is reached, however, the president and the speaker can continue fighting over a speech meant to explain the "state of the union."

Chris Clayton can be reached at Chris.Clayton@dtn.com

Follow him on Twitter @ChrisClaytonDTN

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