A top-ranking Senate Democrat has voiced concerns about the legal justification for the FAA’s decision to recall approximately 3,000 safety inspectors and engineers to return to work without pay amid the longest government shutdown in US history.
In a Jan. 22 letter to Department of Transportation (DOT) secretary Elaine Chao, Sen. Mark Warner (D-Virginia) said the Department’s decision to recall 3,113 people employed by FAA’s Aviation Safety Organization may have skirted Congress’s “power of the purse” by ignoring the constitutional requirement that “no money shall be drawn from the treasury, but in consequence of appropriations made by law.”
In addition, Warner said the move could have run afoul of the Anti-Deficiency Act, a piece of legislation that restricts employing government workers beyond authorized levels to emergency situations, except where the failure to do so would result in “an imminent threat to the safety of human life or protection of property.”
The senator, in a statement, criticized the “seemingly ad hoc way” in which the Trump Administration is “picking winners and losers” during the shutdown by determining that FAA workers who perform work such as air-safety checks and “routine activities” including approving new aircraft for commercial carriers’ fleets and new flight routes should be deemed exempt from furlough.
“Under current circumstances. . . It is unclear that these activities could be described as ‘emergencies involving the safety of human life or the protection of property’ that would allow for excepted employees to perform these duties while Congress has not appropriated funding for your agency,” Warner said in the letter.
Warner told Chao to provide him information related to the legal justification for the employee recall, including whether anything changed between the beginning of the shutdown on Dec. 22, 2018 and the Jan. 15 decision to recall the employees, as well as what formal or informal guidance the Department based its decision on.
“It is important that the Administration respect the proper roles of each branch of government, particularly Congress’s power of the purse . . . The current situation should not give the Administration license to substitute its own determination on proper spending priorities for that of Congress,” Warner said.