Elena Kagan Comments on how to “Get Around” Anti-Deficiency Act During Government Shutdown

October 5th, 2013

In this memo, Elena Kagan advises the Executive Branch on how to “Get around” the government shut down. She wrote the memo on January 4, 1996, of course, as Associate Counsel to President Clinton.


Here’s the description from the History News Network:

U.S. Supreme Court Justice Elena Kagan, who last year voted to uphold the Patient Protection and Affordable Care Act — opposition to which is the cause of the current federal government shutdown — was a key point person in the Clinton Administration for the 1995-1996 shutdowns. Records from the website of the William J. Clinton Presidential Library1 detail then-Associate White House Counsel Kagan’s role in many aspects of the shutdown, including lawsuits2 brought by federal employee unions3; the possible use of the Judgment Fund to pay federal employees who were performing emergency functions4; the implications of the Anti-Deficiency Act (including how to “defeat/get around” it5); the mechanisms involved in shutting down agencies and what government functions may continue6; determining whether Executive Branch officials could appear as Congressional hearing witnesses (and what they might discuss); and how President Clinton could voluntarily defer his salary7.

Most of the same issues from eighteen years ago are still being debated today, and the historical perspective would be instructive. In the current shutdown, dozens of Members of Congress have announced they will forgo their salary until the government is reopened; as of this writing, President Obama has not made any statements about his own salary. In 1996, Ms. Kagan worked on the salary deferral issue for President Clinton. Using an initial draft8 from a colleague at her former law firm, Williams & Connolly, Ms. Kagan developed an Escrow Agreement for President Clinton to “decline the benefit of his usual compensation as President of the United States time as Federal workers are furloughed as a result of disagreement over the Federal budget.”

Ms. Kagan’s work related to the shutdown — research, analysis, discussion of solutions and alternatives — is non-controversial, and appears to be standard Associate Counsel responsibilities, much like the work that attorneys throughout the government are performing today. That researchers have access to these records at all is the more remarkable part of this story.

H/T Legal History Blog