During Shutdown, Deciding Who's Essential is Pretty Random

It's hard to understand why some government offices are still open during the shutdown. That's because no one really knows who has an essential mission in the federal government and who doesn't.
by Daniel Luzer | October 10, 2013 AT 3:01 PM

By Lesley Clark and David Lightman

The websites that offer information about President Barack Obama's health care law survived the government shutdown -- even with glitches. But a federal website featuring information about the Amber Alert went dark.

Make any sense? Hardly.

No one really knows who has an essential mission in the federal government and who doesn't, and that's why it's hard to find logical reasons for what's been open during this partial government shutdown and what hasn't.

The general definition is that anyone involved in protecting life or property works. Everyone else doesn't.

But there's no detailed manual, no precise definition of how to figure all this out. The National Institutes of Health will continue to treat current patients but it won't admit new ones. The NASA administrator is at work but the human resources officer isn't. The intelligence community sent seemingly nonessential workers home, then called workers back. Walk through the Capitol complex, and you'll find one restaurant is open while another is closed.

Each agency decides who's needed. And there's strong evidence that politics plays a part.

Officially, the calls are made based on guidance issued by the White House Office of Management and Budget, which bases its recommendations, in part, on a Justice Department opinion authored in 1980 by then-President Jimmy Carter's attorney general. That determination has been interpreted to define essential activities as those that "protect life and property."

But clearly it's more acceptable politically to open much more of the Pentagon than, say, the Environmental Protection Agency. And Republicans see barricading popular sites such as the National World War II Memorial in Washington as a Democratic ploy to spark public outrage.

"I think to close down an open memorial like the World War II memorial or the Martin Luther King memorial or any open-air or open-space memorial is a poke in the eye" to Republicans, said Rep. John Mica, R-Fla., the chairman of the House of Representatives Government Operations Subcommittee. "It's offensive."

READ: Full coverage of the shutdown's impact on states and localities

Democratic Rep. James Moran, whose northern Virginia district is home to thousands of federal workers, acknowledged that agency heads are politically attuned, knowing what will be accepted and what won't.

"Every bit of it is political," he said. "I think some agencies know that they're doing work that has been prioritized by one party or another."

Look at the Pentagon, he said. "I'm not suggesting (Defense Secretary Chuck Hagel) is playing politics in any way. But the fact is that he understands the way it's going to be viewed by the Congress. I think he feels he can probably get a higher percentage of his employees back," Moran said. "The Department of Health and Human Services is not so lucky. The IRS is not so lucky."

If there's one thing Republicans and Democrats can agree on, it's that the decision on who's essential often comes down to a judgment call.

"Any law always has room for some interpretation, and there's no doubt there's many shades of gray here," said John Palguta, the vice president for policy at the nonprofit Partnership for Public Service and a former executive-branch human resources manager.

(c)2013 McClatchy Washington Bureau