Defense Secretary Chuck Hagel is trying to exempt more civilians from furlough.

Defense Secretary Chuck Hagel is trying to exempt more civilians from furlough. DoD photo by Erin A. Kirk-Cuomo

Could a Brief, Hastily Written Law Put More DoD Workers Back on the Job?

The Pay Our Military Act was written in such a rush that it might give the Pentagon the power to decide who gets furloughed – not the White House. By Stephanie Gaskell

Late Monday night, just hours before the deadline to pass a spending bill and avert a government shutdown, Congress passed and President Obama signed the Pay Our Military Act to make sure the nation’s troops would get paid. The bill also ordered exempt civilian employees – those deemed essential to supporting the troops and national security – to continue to get paid.

But the legislation was so hastily written and extremely brief that Defense Secretary Chuck Hagel is trying to find a ‘solid, legal interpretation’ of the law to try to get some of the 400,000 civilian Defense workers who’ve been furloughed during the shutdown back on the job.

Here’s the key part of the bill that has Pentagon lawyers – and several GOP leaders – arguing that the law is so vaguely written that it gives Hagel the power to decide who gets furloughed, not the White House:

(1)    such sums as are necessary to provide pay and allowances to the civilian personnel of the Department of Defense (and the Department of Homeland Security in the case of the Coast Guard) whom the Secretary concerned determines are providing support to members of the Armed Forces described in paragraph (1)

Speaking to troops in Japan on Friday, Hagel said his legal staff, along with Comptroller Bob Hale and Deputy Defense Secretary Ash Carter, is trying to determine whether the law allows them to exempt more workers.  

“The fact is all our civilians who work for the Department of Defense support our military. There's no job in our Department of Defense that doesn't support the military,” Hagel said. “So I think theoretically – I'm not a lawyer, but I do have some appreciation for common sense, and common sense tells you that if you're working for the Department of Defense, you're supporting the defense and the security of America. And you're supporting those who are on the front lines – those in uniform, like you – who do this nation's business. So we're going to take care of all the components of DoD that support you and your families.”

[Read Defense One's complete coverage of the government shutdown here]

One of the many things Pentagon leaders loathe about budget cuts, furloughs and shutdowns is that they force them to identify “essential versus nonessential” workers, something they say hurts morale. They prefer to use the term “exempt versus nonexempt.”

Hagel has the support of several Republican Congress members, including House Speaker John Boehner. They’re urging Hagel to use the authority they say is set out in the law, giving the Defense secretary the power to decide who is exempt. “I believe the legislation provides you broad latitude and I encourage you to use it,” House Armed Services Committee Chairman Rep. Buck McKeon wrote in a letter to Hagel. McKeon and others say “the text does not limit the provision of pay to civilians who were previously categorized by the administration as ‘excepted’ or ‘essential’ for the purposes of Department of Defense operations in the event of a shutdown.” In other words, the bill doesn’t specifically direct Hagel to use Office of Management and Budget shutdown guidelines to determine who’s exempt and who’s not.

In the meantime, the House is set to vote on a bipartisan bill Saturday that would retroactively pay furloughed civilian workers once the shutdown is over. The White House expressed “strong support” for the bill.