09/30/2021
For all my friends receiving Social Security payments who may soon be seeing posts on social media saying Biden is threatening their payments, as was falsely implied in reference to Obama the last time a government shutdown was threatened, per this memo, there is no threat to SSA (Title II retirement and disability) payments. SSI (Title XVI) payments are protected through the first quarter of 2022. These payments are protected per the "Necessary Implication exception," as I understand a recent update from SSA that I just received from the National Association of Disability Representatives: "We are excepting about 54,000 employees from furloughs under applicable exceptions to the
Antideficiency Act. The functions of the excepted employees will remain largely the same as
those described in our most recent plans. We are also excepting staff to support our
information technology (IT) programmatic applications and infrastructure and our fraud
prevention activities related to the timely and accurate payment of benefits to the public.
Since our current appropriation extends the period of availability for dedicated program
integrity funds to 18 months, any program integrity funds carried over would be available
during a lapse in appropriations beginning the following fiscal year. I have enclosed a chart
setting forth our estimated total employee count by agency component and a brief description
of the functions excepted employees from each component will perform in the event of a
partial shutdown. This letter further explains our legal basis for conducting those functions
during a partial shutdown.
During a lapse in appropriations, we must cease all activities for which our annual funding has
expired, unless an exception to the Antideficiency Act applies. See 1980 and 1981 Opinions
from Attorney General Civiletti (1980 and 1981 Opinions). Three exceptions apply to our
work: the wind-down activities exception, the protection of life and property exception, and
the Necessary Implication exception. See id. With respect to the wind-down exception,
Attorney General Civiletti explained that, “[F]ederal officers [may] incur those minimal
obligations [during a lapse in appropriations] necessary to closing their agencies.” 1980
Opinion. In 1981, Attorney General Civiletti advised that Federal agencies may obligate funds
during a lapse under the protection of life and property exception by showing a “reasonable
necessity” of the funded activity to ensure the safety of human life or protection of property.
1981 Opinion. Attorney General Civiletti also opined that the Necessary Implication
exception allows a limited number of Government functions funded through annual
appropriations to continue despite a lapse in their appropriations because the lawful
continuation of other activities necessarily implies that these functions continue as well. Id.
In 1995, the Department of Justice, Office of Legal Counsel (OLC), issued a memorandum
specifically noting that the activities necessary for disbursing Social Security benefits that
“operate under indefinite appropriations” are examples of activities permitted by necessary
implication. Further, the 1995 OLC memorandum extended the Necessary Implication
exception to those functions performed by one agency necessary to support the funded functions
of another agency.
Funding for the programs under Titles II, XVI, and XVIII of the Social Security Act will
continue, even in the event of a lapse in appropriations. Indefinite trust funds supply Title II
and Title XVIII benefits. General revenues fund Title XVI payments. However, the current
appropriation funds those payments through the first quarter of the following fiscal year.
Because there is funding to pay these benefits, the Necessary Implication exception allows us to
perform those activities needed to ensure that benefits are accurately and timely paid, despite a
lapse in appropriations. Our continuing functions related to making accurate payments during a
lapse in appropriations is consistent with our previous contingency plan and is legally justified
under the 1981 Opinion that permits us to “continue the administration of the program[s] to the
extent of the remaining benefit funding.”
Page 3 – Ms. Shalanda Young
The enclosed charts detail the critical functions we would continue during a lapse in annual
appropriations lasting between one and five days. Should a partial shutdown last longer than
five days, we would reevaluate the number of excepted employees performing such functions
and possibly increase the number of excepted employees as we did during the 2013 shutdown.
Under the Necessary Implication exception, we will except only those employees critical to our
direct-service operations and those employees whose work and oversight are critical to support
those operations. Specifically, with respect to the Office of Hearings Operations, we will
except decision writers, administrative law judges, and support staff necessary to conduct
hearings. We will also retain a limited number of SSA employees and necessary law
enforcement agents from our Office of the Inspector General under the protection of life and
property exception. We anticipate allowing employees to conduct orderly wind-down activities
for no more than four hours on the first day of a lapse in appropriations consistent with the
guidance of your office.
If we have a lapse in appropriations, we will encourage the disability determination services
(DDS) to continue limited services during a lapse under the Necessary Implication exception
with the understanding that we will reimburse the DDSs for their work once we receive
funding. However, because DDS employees are State employees, we cannot direct the States to
except or furlough their employees during a lapse. Each State will have to determine whether it
can maintain limited DDS operations and pay its employees during a lapse.
Once we received restored appropriations, we will resume normal operations by:
• Notifying employees that the shutdown furlough has ended and that they are to return to
work on a specified date;
• Providing supervisors with flexibility regarding leave and attendance issues if
employees encounter problems returning to work on the day specified;
• Ensuring that IT systems are running smoothly for employees returning to work; and
• Resuming program activities related to grants and contracts and other fiscal and
financial matters.
We will keep your office informed about any other actions required to resume normal operations
after a shutdown. We are committed to ensuring that, consistent with the constraints of a partial
shutdown, we conform with applicable law, regulation, and guidance, yet continue to serve the
American people in these difficult times.
Sincerely,
Michelle King
Deputy Commissioner
for Budget, Finance, and Management
