Perhaps the most interesting example of a "specific exemption," Jackson says, is the Food and Forage Act of 1861 -- near the start of the Civil War. As the title suggests, that law permitted soldiers to graze their horses and take whatever other necessities were required to live on horseback. It's a law that was invoked in a decidedly non-horsey sense during the Vietnam War, again during Operation Desert Shield in Iraq in 1990, and, for a brief time, immediately following the terror attacks of September 11, 2001.
"Federal employees can accept volunteers or go beyond their funding in cases of emergency involving the safety of human life or the protection of property," Westmoreland says. So federal firefighters and law enforcement officials clearly are exempt, Tiefer adds, as are judges presiding over criminal (but not necessarily civil) cases. Moreover, it's the OMB, with help from the Justice Department, that makes the call on who is essential and who is not, and each federal department, as we see above in the judicial example, has formulated its shutdown protocols. Westmoreland writes:
There has been a lot of legal interpretation (including during the Reagan and Clinton Administrations) of what this means. Overall, it has been interpreted narrowly but not rigidly. But the threat to life or property has to be "imminent." Air-traffic controllers and meat inspectors can generally keep working. People writing checks or doing maintenance generally cannot.
Worried about that federal payment that may be coming to you? You may be right to be concerned. Most payments will come, but others won't. As Jackson notes, new Social Security or Medicare checks or applications may not be processed as quickly (or not at all) until funding is restored. But Westmoreland says funding for Social Security doesn't go away on October 1:
There is also another group of activities that are not really an exception to the Act because they actually meet the terms of the Act: programs that already have received an appropriation from the Congress. Most government activities are funded by the Congress for just one year at a time. But some -- like Social Security -- have permanent funding in their statutes. Others may have multi-year funding that will not expire on September 30. Those programs won't shut down, although some of the staff who make the programs work more easily or more efficiently might have to stay home because their salaries are part of the annual spending bill.
So, barring a degree of political bipartisanship that seems increasingly unlikely, a dusty law designed in the 1880s to stop excessive federal spending will be employed next week to guide the government in a dispute over, well, excessive federal spending.
"The irony is that it always costs money to restart them and they typically get their back pay for the days they don't work, the government employees, and they have to catch up on the work that's not done while they are on these involuntary furloughs," Jackson said."So it's a very expensive way to play politics over the fiscal crisis."