As the partial government shutdown goes on and on and on with no end in sight due to the intransigence of Trump on the border wall issue, some workers are being forced to continue at their “essential” jobs without pay, and could be fired if they refuse. Four of them, from Texas and West Virginia, have filed a lawsuit likening their situation to slavery or indentured servitude, per the Washington Post:
“Our plaintiffs find themselves in the exact same boat as virtually every other furloughed federal employee: bills to pay and no income to pay them,” the workers’ attorney, Michael Kator, told The Washington Post via email. “As this drags on, their situation will become more and more dire.”
According to the lawsuit, if the employees don’t report to work, they could face discipline or removal. The suit claims that this amounts to a form of coercion barred by the 13th Amendment.
This is far from the only lawsuit against the Trump administration, but it is the only one that invokes the 13th Amendment. One of the plaintiffs is an air traffic controller (the others are not clear, as the plaintiffs are anonymous), and as their lawyer pointed out, the lack of pay is just one issue that could spawn many others, including loss of health insurance, defaults, foreclosures, and other financial catastrophes. Even in the case of these employees receiving back pay when the shutdown resolves—a resolution passed by Congress last week but not yet signed by the president—it will not solve those critical issues.
Unfortunately for the plaintiffs, there is a long history of 13th Amendment petitions being struck down by the courts, even under some very compelling circumstances:
For example, the Supreme Court held in 1988 that pushing mentally disabled men to work on a farm for no wages by threat of institutionalization did not amount to involuntary servitude, because “psychological coercion” isn’t covered under the amendment. For similar reasons, circuit courts have held that threatening unpaid or underpaid migrant workers with deportation is not involuntary servitude. Teenagers forced to complete mandatory community service as a condition of graduation also isn’t involuntary servitude, as many disgruntled parents have tried to argue in court. And forcing an impoverished man who couldn’t afford a $3 tax to perform compulsory road work as an alternative also is not involuntary servitude, the Supreme Court ruled in 1916.
The lawsuit also invokes the Fair Labor Standards Act, which gives the plaintiffs a much lower barrier to success and is far more common in situations like these. As of Monday, the shutdown has entered its 24th day.