When DHS Shuts Down, Who Decides Which 200,000 Employees Keep Working?

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On February 14, 2026, at 12:01 AM, the Department of Homeland Security ran out of money. Within hours, someone had to decide which of DHS’s employees would keep showing up to work without paychecks and which would be sent home.

Not the President. Not Congress. Not even the DHS Secretary in any direct sense.

The answer reveals how government functions when it breaks down—through a series of legal decisions and choices made by different officials, and supervisor-level decisions that determine whether your airport gets screened, your coastline gets patrolled, and whether federal workers spend the next few weeks working for free.

Legal Framework for Shutdown Operations

When the government shuts down, most federal work stops. But there are exceptions. First: work explicitly authorized by permanent law—things like Social Security that don’t depend on annual funding bills. Second: work required to fulfill a legal duty, even if not explicitly spelled out. Third: work needed to prevent immediate danger to people or property.

That third category has been stretched to cover more and more situations. Law enforcement and national security agencies have interpreted “imminent threat” broadly enough to keep most of their operations running.

The Office of Management and Budget provides government-wide guidance through official documents, telling agencies how to develop contingency plans. The decisions about individual workers happen much further down the chain.

Who Decides Which Workers Stay

There’s no single person who decides which DHS workers keep working and which go home. The DHS Secretary holds ultimate responsibility but doesn’t make individual determinations. The leaders of agencies like TSA and FEMA are the ones who decide for their workforces, usually in consultation with their general counsels. Then supervisors and HR officials apply those category-level decisions to specific people.

About 85 percent of FEMA’s workforce keeps working, doing everything from immediate disaster response to long-term recovery planning to support tasks. According to FEMA’s contingency planning, planning for future disasters counts as essential work.

An administrative assistant supporting immigration enforcement officers might keep working if their work directly enables field operations. Or they might be sent home if they primarily maintain internal records. The decision depends on someone’s judgment about whether this specific person’s specific duties meet the statutory standard. That someone is usually a supervisor with limited legal training interpreting ambiguous statutory language under time pressure.

Two workers with nearly identical job descriptions in different offices might get opposite designations based on how their supervisors interpret the rules.

Pre-Appropriated Funding Changes the Equation

This shutdown is different because of pre-funded immigration enforcement. Congress approved it as multi-year funding instead of the usual annual process. ICE has access to these funds regardless of whether Congress passes a new DHS appropriations bill.

Acting ICE Director Todd Lyons told Congress explicitly that the agency has “$75 billion in funding from the BBB” available regardless of a shutdown.

This means ICE can keep operating even during a shutdown. ICE enforcement operations—the immigration officers, the investigators, the detention officers—can continue operating because they have pre-appropriated funds.

But it does hurt FEMA, Coast Guard, TSA, and other agencies that depend on annual appropriations. Those agencies will degrade if the shutdown extends beyond a few pay periods. The enforcement operations that Democrats wanted to constrain keep running.

Senate Minority Leader Chuck Schumer made this point explicitly, arguing that shutting down DHS would have “zero impact” on ICE functionality because of the pre-appropriated funds.

The Minneapolis Shootings That Triggered the Shutdown

To understand why Senate Democrats were willing to shut down DHS, you need to know about three shootings in Minneapolis in January 2026.

On January 7, ICE agent Jonathan Ross fatally shot Renée Nicole Good, a 37-year-old U.S. citizen and mother of three, during what DHS called an enforcement operation. Good was in her vehicle when agents approached. Multiple video analyses—including by the New York Times and ABC News—contradicted the administration’s initial narrative that she had attempted to run over agents. The evidence suggested Ross fired three shots at her departing vehicle under circumstances that witnesses disputed as self-defense.

Seventeen days later, Border Patrol agent Jesus Ochoa and CBP officer Raymundo Gutierrez fatally shot Alex Pretti, also a U.S. citizen, also in Minneapolis. Pretti was a 37-year-old ICU nurse working for the VA who had been observing federal enforcement operations and documenting agents’ conduct on his phone. When agents confronted people Pretti was with, he moved to assist a woman being pushed by an agent. An agent deployed pepper spray at his face. During the struggle, agents fired approximately ten shots, killing Pretti.

Video evidence contradicted official narratives in both cases. This crystallized Democratic concerns and triggered their decision to condition DHS funding on specific accountability reforms.

Eight Specific Reforms Democrats Demanded

First: mandatory body cameras on all ICE agents conducting enforcement operations. The cameras must be turned on during all public interactions, and footage must be released and preserved.

Second: agents must show their name, agency, and ID number—and verbalize this information if asked. This would prevent agents from staying anonymous during problematic encounters and would facilitate accountability mechanisms that depend on identifying specific officers.

Third: judicial warrants before entering private property, except in true emergencies. The Constitution generally requires judges to approve before police enter homes. ICE has been allowed to issue its own warrants instead of getting them from judges for immigration enforcement. Requiring judge-approved warrants would slow down ICE’s immigration raids, which is why the Trump administration and Republicans deemed this demand unacceptable.

The additional demands included prohibitions on enforcement in sensitive locations like schools and medical facilities; stronger training requirements; enhanced use of force standards; restrictions on racial profiling; and provisions allowing state and local governments to investigate and prosecute federal officers for excessive force.

Republicans defended giving police flexibility while offering small compromises on body cameras and procedural measures they believed wouldn’t significantly constrain operations. The White House sent multiple counter-proposals but refused to accept restrictions on ICE’s ability to enter private property or conduct large-scale enforcement operations.

Fetterman’s Opposition

Senator John Fetterman, a Democrat from Pennsylvania, voted against the shutdown. Fetterman has no ideological alignment with Republicans on immigration. He’s a Democrat in a swing state who has consistently supported union causes, progressive economic policies, and criminal justice reform.

He was essentially saying Democrats were using the shutdown for show—shutting down important services to push for changes that couldn’t be achieved through shutdown leverage given ICE’s pre-appropriated funding. In his view, legislators should pursue reform through other legislative vehicles rather than creating collateral damage to unrelated agencies and federal workers.

Immigration and civil rights activists protested outside his office. Democrats disagreed about whether Fetterman was being practical or giving up.

The Experience of “Excepted” Workers

Behind the framework and political conflict are DHS workers told they’re essential—meaning they’re required to report to work without paychecks until funding is restored.

They’ll eventually get paid for the work they did, but not right away. Congress had to fight to pass this rule during the 2018-2019 shutdown. Knowing they’ll get paid eventually doesn’t help workers who need money now—missed mortgage payments, inability to purchase groceries, accumulating financial stress.

A TSA officer working airport security during the shutdown is performing work that clearly meets the “safety of human life” standard. That officer isn’t receiving paychecks for this work. The stress causes workers to quit and find other jobs.

During the 2018-2019 shutdown, more federal workers quit and retired early. These numbers hide bigger problems for younger workers and those with lower tenure who have alternative employment opportunities.

Being told you’re essential and must work without pay feels different than being sent home. Excepted workers feel important but also uncertain, while furloughed workers at least know they’re going home.

What Happens If the Shutdown Extends

The shutdown began February 14. Congress isn’t scheduled to return until February 23—a nine-day gap. If the shutdown lasts past the first paycheck (February 28), things get worse.

Excepted workers working without pay can tolerate this for a limited period. Extended shutdowns break down operations as stressed workers stop showing up, seek other employment, or are sent home because their jobs become less important when the system falls apart.

DHS officials warned Congress that an extended shutdown would affect recruiting, damage morale, and disrupt long-term planning at the Coast Guard, which would curtail training and ground aircraft; at TSA, where delayed paychecks could cause unexpected absences and security line delays; and at FEMA, which could struggle to make payments for long-term recovery efforts.

These warnings were based on experience from the record 43-day shutdown in late 2025 that officials said the agencies still hadn’t recovered from several months later.

How long workers can keep going without pay depends partly on morale and partly on practical problems—more workers missing work because they can’t afford gas or childcare.

Legal Ambiguities Enable Discretionary Decisions

Deciding which workers are essential depends on how officials interpret vague rules. The law doesn’t clearly define what counts as necessary to protect life and property.

These unclear rules let different administrations make different decisions. The Trump administration called more jobs essential, arguing they relate to safety and national security. The Biden administration pursued relatively aggressive excepted designations too, but framed them differently.

Different officials at different levels make these decisions, making it hard to hold anyone accountable. The budget office gives advice but can’t force agencies to follow it. Agency leaders decide which workers are essential, but they’re rushed and don’t know how long the shutdown will last. Supervisors and HR officials then apply these category-level designations to specific people.

Workers told they’re essential have little way to challenge the decision if they think it’s wrong. Workers sent home have more legal protections than those told to work without pay under federal employment law, which treats furloughs as adverse actions subject to procedural protections.

What This Reveals About Government Structure

The shutdown shows how Congress gives agencies control during budget fights and what happens when that delegation interacts with pre-appropriated funding mechanisms. By giving enforcement a four-year budget all at once, Congress gave up its yearly control. The money is available no matter what, and the administration can decide how to spend it.

How officials decide which workers keep working and which go home hasn’t gotten much attention. It’s how shutdown politics affect people’s lives and government work. The rules are unclear, officials have a lot of power, and rushed decisions affect which workers get paid.

Federal workers rarely know how officials decided their status. They can’t fight the decision before it takes effect.

Real change would need Congress to write clearer rules about which jobs are essential and let workers have a say. Administrations like having power to decide who works without pay. Congress members who use shutdowns as a bargaining tool would likely resist any such reform.

For now, the DHS workers told they’re essential keep showing up. They’re doing work they know matters but don’t know when they’ll get paid. Their status is based on unclear rules, judgment calls, and decisions made by people far above them about how to balance enforcement operations against oversight accountability.

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