In this, one of the endless stream of critical weeks for our constitution, our government, and the referendum decision on Brexit, it might be diverting to look how our partner in populist politics, the United States, is faring, particularly given its ongoing endurance of the longest government shutdown in its history over the question of funding for the wall on the Mexican border.
The New York Times wrote a piece called ‘Brexit and the U.S. Shutdown: Two Governments in Paralysis’, which ran through the usual parallels – although it ended by noting smugly that, unlike with our decisions here, the fate of the US does not hang in the balance.
What piqued my interest in the impact of the shutdown on lawyers and the legal system was that my work was personally affected last week by the shutdown in the most minor way. I was introduced to someone from the US Agency for International Development (USAID) before Christmas regarding project funding, and was intending to follow up – when I noted that about half of its 3,600 staff had been furloughed. The other half include employees whose jobs are considered necessary for the protection of life and property or necessary to carry out the president’s constitutional duties, which certainly does not cover my business.
The American Bar Association (ABA) has recently put out some useful information on the effect of the shutdown on the legal system.
Dealing with the courts first, the federal court system has continued to operate by using court fees and other funds, but money to sustain paid operations is expected to run out this coming Friday. Judiciary employees reporting to work are currently fully paid. However, the shutdown affects the U.S. Marshal Service differently, and marshals providing court security are unpaid.
Of course, there is a vast state court system in the USA, which is not directly affected by the federal shutdown – 96% of all court proceedings go through the state courts. Federal courts hear cases involving the constitutionality of a law, cases involving the laws and treaties of the U.S. and ambassadors and public ministers, disputes between two or more states, admiralty law, bankruptcy, and habeas corpus cases.
If the money runs out after Friday, the system will continue to operate for essential matters. Judges and key staff members will then have to work unpaid, handling those criminal and other matters deemed essential. Probation and pretrial services officers needed to resolve cases will also be working.
The federal court system can continue to operate under the terms of the Anti-Deficiency Act, which allows essential work to carry on during a lapse in appropriations. Each court determines the staff necessary to support its critical work.
In response to requests by the Department of Justice, some federal courts have been issuing orders suspending, postponing, or holding in abeyance for a limited period civil cases in which the government is a party.
The shutdown has also closed most immigration courts, adding to a case backlog of more than 800,000. Thousands of cases a day are being cancelled, and will be rescheduled at the back of the queue, meaning that their court date could now be two to four years in the future.
In one of the ironies of a shutdown prompted by a dispute over perceived damage caused by immigration, immigration judges who handle cases of non-detained immigrants are not working, and they are forbidden to work on a volunteer basis. Immigration courts in detention centres continue to operate, using judges who are not being paid.
The Departments of Justice and Homeland Security are not being funded, and about 85% of their employees are working unpaid. This includes tens of thousands of law enforcement personnel from the FBI, the Drug Enforcement Administration, the Bureau of Prisons, Customs and Border Protection, and Transportation Security Administration agents.
FBI investigations are continuing because ‘all operations of the FBI are directed toward national security and investigations of violations of law involving protection of life and property’- the same criterion I mentioned above in respect of USAID.
The Treasury Department’s Financial Crimes Enforcement Network and the Securities and Exchange Commission will continue some investigations but have shut down others until funding is restored.
Conscious of the damage done to government lawyers, the ABA has recently announced a programme to provide free Continuing Legal Education (CLE) courses to affected lawyers, covering a range of legal issues, such as ethics, disaster resilience and cybersecurity.
The ABA President said that the ABA ‘appreciates all the hard work done by lawyers who keep our government running. By offering free CLE courses, we are trying to show that we recognize their efforts and will try to assist them through these trying times.’
Now we must all go back to Brexit, and the consequences of our own decisions.