Thread by @SamBerger_DC

Trump's Treasury Dept will be recalling 46,000 IRS workers to send out tax refunds. Here's a longish thread about why that's illegal and why you should care.

Warning: this gets in the weeds, but hopefully will help explain the relevant law + context. /1
npr.org/2019/01/15/685…

(background: in 2013, I was a lawyer at OMB and my job was to help agencies understand how to apply the law to their programs during the shutdown.) /2

The fundamental premise of a govt shutdown is simple: Under the Constitution, the govt can't spend $ on activities unless Congress provides it. No $, no activities.

Against that backdrop, Congress has provided *limited* exceptions for what agency activities continue. /3

The exceptions are (1) activities to protect life and property; (2) activities necessary to the discharge of the President's constitutional powers; and (3) activities Congress said can continue during a shutdown (either expressly or through implication). /4

IRS claims to be relying on the 3rd exception: b/c there is $ to pay the refunds, IRS says it can force employees to work for free to send them out the door. This is contrary to IRS's longstanding legal view (reiterated multiple times under Trump). /5

IRS says tax refunds are like Social Security payments - i.e., the Justice Dept has long-held that social security payments continue during a shutdown (b/c Congress has funded them and directed payments to go our regularly). /6
justice.gov/file/22536/dow…

But there's a critical distinction between the 2: social security payments are required to go out by a certain time. Tax refunds are not. Why is that important? B/c a key question during a shutdown is whether an unfunded activity *needs* to occur during the shutdown. /7

This OMB guidance explains it well: "where an agency is not otherwise compelled by the terms of a statute to engage in a funded activity during a [shutdown] there is not a 'necessary implication' that the agency [take the action]." /8
dni.gov/files/document…

DOJ makes a similar point here: to take an unfunded action (employees) to support a funded function (refunds), the unfunded action must be necessary for "the funded function to be effective." So the Q is: does that activity really need to happen now? /9
justice.gov/file/20141/dow…

Tax refunds are a textbook example of activities that don't: Congress has told the IRS to make refund payments, but not when. In fact, the IRS doesn't even owe interest on unpaid refunds until 45 days after the filing seasons ends (i.e. late May). /10
law.cornell.edu/uscode/text/26…

Given all this, it's clear there's no authority to bring back IRS workers to process refunds (that could change if the shutdown lasted so long that the govt could owe significant interest or people were in danger of not getting their refund at all that year). /11

So why should you care?

1. it's bad when elected officials break the law - if they break 1, they'll break many;
2. Trump is picking who to help and who not to, and the most vulnerable will bear the brunt; and
3. This is all to prolong the shutdown. /12
washingtonpost.com/outlook/2019/0…

The point of breaking the law here is to make sure 800k federal workers still don't get paid (incl TSA, FBI, and Secret Service); small businesses still can't get loans; and food inspections are still curtailed. The way to fix those problems: end the #TrumpShutdown. /END

update: Trump's Federal Register is currently relying on DOJ standard that shows refunds are illegal: agencies must show the activity in question needs to happen *during the shutdown* or it would significantly damage the program. (refunds don't meet this standard).

Here's the language: "Under the new DOJ guidance, funded agencies [must show] delaying publication until the end of the [shutdown] would prevent or significantly damage the execution of funded functions at the agency."
archives.gov/federal-regist…