I’m no attorney, but I’ve done some digging. In an attempt to answer some of these questions, I’d like to share what I’ve found.
The governing regulation concerning furloughed federal workers is the Antideficiency Act of 1884. As the story goes, the Executive branch started overstepping its bounds pretty early on in American history. Presidents got into the bad habit of signing contracts obligating the country financially for something or another, and Congress — which constitutionally has the “power of the purse” — found itself backed into a corner. Following the Civil War, legislation was passed that made it far more difficult for this sort of thing to happen: the Antideficiency Act. The purpose of this legislation was to keep the Executive branch of government from obligating the country to pay debts for which there was no congressional authorization.
Over the years, the Antideficiency Act (ADA) was treated with greater or less reverence. From Matthew Yglesias at Slate:
Back in the 1970s there were a whole series of appropriations lapses driven by House/Senate disagreement about abortion. What happened then was basically what happens now with “essential” workers—people keep doing their jobs, it’s just that they don’t get paid. Then when Congress worked out its disagreement, it would also pony up the money for back pay. In a sense this made appropriations lapses “too easy,” to the Justice Department changes the interpretation and now federal workers can’t work. Unless, that is, they’re essential in which case they must work.
The application of this law seems murky at best. Many have noted that the police on Capitol Hill involved in this week’s shooting were repeatedly described as “unpaid” due to furlough. Similarly, the National Weather Service team monitoring the approach of tropical storm Karen are furloughed and unpaid. At some point, people are determined by their particular agency to be “essential” or “nonessential” according to guidelines which, if we’re being honest, aren’t entirely clear. The OMB outlines these and even states that agency heads must develop and maintain plans for an impending shutdown which, among other things, must include “The agency’s legal basis for each of its determinations to retain categories of employees, including a description of the nature of the agency activities in which these employees will be engaged.”
Andrew Cohen at The Atlantic rounded up some experts on the ADA and has offered the most thorough analysis I’ve seen so far. But the arbitrariness of categorization on who can and can’t come to work or volunteer their time seems endemic to the ADA:
The act “definitely applies to government employees and officials of the core executive and independent agencies,” Harvard Law Professor Howell E. Jackson, a budget and regulatory expert, told me. This means the vast majority of federal workers will be told to go home next week in the absence of a budget deal. Those who get to stay will come from two groups — one in which federal workers have been explicitly exempted and one in which workers have been deemed to be “essential” through analysis. “It’s complicated,” Jackson said, “where the lines are drawn and sources of legal authority are not precise.”
So we see that explicit exemptions can and are granted, though Professor Jackson does not indicate by whom. But the historical example cited – the Food and Forage Act of 1861, is a pretty interesting one. It specifically grants the Department of Defense the ability to obligate funds before appropriations are made. Its powers are broad, and it has been used in a number of circumstances. In fact, it seems the perfect loophole to the ADA to get priests back to saying Mass on our bases without obstruction. Then again, as I said, I’m no attorney.
So unless and until such action is taken, what we are left with is the law. I have been asked if priests could really face arrest for saying Mass on base while furloughed. (And let’s remember – these restrictions apply to the contracted services of said priests, not their sacerdotal powers given through the sacrament of Holy Orders. If they have jurisdiction, they can say Mass anywhere else they like.) The restriction is laid out in 31 USC 1342:
An officer or employee of the United States Government or of the District of Columbia government may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property. This section does not apply to a corporation getting amounts to make loans (except paid in?capital amounts) without legal liability of the United States Government. As used in this section, the term “emergencies involving the safety of human life or the protection of property” does not include ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property.
The consequences for violating 31 USC 1342 are spelled out in 31 USC 1350:
An officer or employee of the United States Government or of the District of Columbia government knowingly and willfully violating section 1341(a) or 1342 of this title shall be fined not more than $5,000, imprisoned for not more than 2 years, or both.
So the short answer is yes, these priests can be arrested if they defy the furlough and say Mass on base. They can be charged, imprisoned, and fined. Will they be? Let’s hope not. But the threat alone is enough to cause sufficient concern.
Our military chaplains – not only Catholics, but of every denomination – should be granted an exemption from these requirements and allowed to volunteer so that they may minister to the spiritual needs of our soldiers. The religious liberty of our men and women in the armed forces and those who minister to them are at stake.