DHS SHUTDOWNThe Homeland Security Shutdown and the Power of the Purse
The current Department of Homeland Security shutdown shows that the effects of a shutdown in appropriations are not fixed by Congress alone. They depend on executive choices about which functions to sustain, which funds to deploy, and where disruption will be felt. Without clearer constraints on that discretion, Congress’s power of the purse becomes increasingly illusory in the very moments it is meant to matter most.
The Department of Homeland Security has been shut down for more than 10 weeks. Yet immigration enforcement has continued largely because Congress previously provided substantial long-term funding to Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). But that is only part of the story: Core immigration enforcement activities are also among the functions that the executive has consistently treated as excepted during a shutdown. Meanwhile, the administration has used immigration-related funding to pay Transportation Security Administration (TSA) employees, softening the shutdown’s most visible public effects.
Shutdowns are not self-executing. Within statutory limits, the executive branch exercises significant discretion over which activities continue, which funding streams cushion the blow, and how much disruption results. That discretion is inherently political. A president expecting Congress to bear the blame may allow visible disruptions to intensify, while one facing public backlash may work to blunt them.
While not a regular tool of congressional control, shutdowns enable Congress, in extreme cases, to cut off funding for unlawful executive action. That function matters most for coercive government functions—immigration enforcement, law enforcement, and the military. Yet those functions are precisely where the emergency exception is most likely to apply. As a result, they can continue at substantial capacity even during a shutdown. This produces a structural asymmetry: The executive can maintain detention, removal, and enforcement operations while other government activities are curtailed. The very exercises of government power that most threaten individual liberty—and that Congress may be seeking to constrain—are often the easiest for the executive to sustain during a shutdown.
How Executive Discretion Reshapes a Shutdown
Three features of appropriations law are especially important here: the availability of other funding, the scope of exception authority under the Antideficiency Act, and the limited transparency surrounding lapse operations.
Applying the Emergency Exception
The Antideficiency Act (ADA) prohibits agencies from obligating or expending funds in excess of available appropriations and from accepting voluntary services. During a shutdown, that prohibition generally requires agencies to furlough employees whose salaries depend on funding that has run out.
