Is the Federal Government Shutdown Forcing Closure of Privately Run Facilities?

Published: 
Thursday, October 3, 2013
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Bryan Preston reports that the federal government is ordering private contractors to close campgrounds and the like on federal lands even where such properties do not rely upon federal funds to operate. Indeed, in many cases, these properties generate revenue for the federal government. According to Preston’s report, similar closures were not ordered during prior shutdowns, so they would not seem to be required.  So, for instance, the National Park Service ordered Philadelphia’s City Tavern closed, even though it was not closed during prior government shutdowns.  Hans Bader has more here.

The fact that some facilities are being closed now when they were not closed during prior shutdowns suggests these are discretionary choices.  These closures also raise some interesting legal questions.  For instance, on what authority can the NPS or another federal agency order the closure of a facility run by a private concessionaire or tenant?  Do the relevant lease or concession agreements provide for this?  And if there is not clear authority for ordering a closure in this sort of instance, might the federal government be liable for the subsequent losses?

I understand the “Washington Monument strategy.” President Clinton used it quite effectively. But it seems to me there’s a difference between focusing cuts where they will be the most visible (or inflict the most pain) and ordering costly actions to create the appearance of cuts where no cuts are required. So, for instance, the NPS Park Police were apparently ordered to erect barriers across the entrances to various parks that cost nothing to keep open, such as the WWII memorial and overlooks on the GW parkway.  But any such orders should be justified by the need to conserve funds.  Closures that are not legally required and that cost the government money would seem to exceed the executive’s prerogative.

Cross-posted at the Volokh Conspiracy.

Jonathan Adler is Professor of Law and Director of the Center for Business Law & Regulation at the Case Western Reserve University School of Law. He is a prolific scholar, publishing on such topics as regulatory takings, water marketing, fisheries management, and the judicial limits of federal environmental regulation.He is the author, editor...
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