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updated 4/8/2011 5:40:17 PM ET 2011-04-08T21:40:17

The nation's largest federal employee union says forcing some federal employees to work without pay during a government shutdown violates the U.S. Constitution.

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The American Federation of Government Employees has filed a lawsuit seeking an injunction to prevent the Obama administration from requiring essential employees to keep working if a shutdown occurs.

Boehner joins lawmakers pledging to return pay in event of shutdown

"Hundreds of thousands of federal employees will be required to work during a shutdown, and there's no guarantee that Congress will keep the administration's promise to pay those employees once the shutdown is over," said John Gage, the union's president.

A White House spokeswoman would not immediately comment on the lawsuit.

The lawsuit says requiring work without pay violates language in the Constitution that prohibits the government from committing to spend money that has not yet been approved by Congress.

It also claims forcing employees to work without pay violates the prohibition on involuntary servitude. It says there's no guarantee Congress will pay those employees once a shutdown ends.

Story: Budget deal reached, government shutdown averted

Congress and the White House face a deadline of midnight Friday to agree on funding to keep the government open.

Joe Henderson, an attorney representing the union, said no hearing has been set in the case. He said he did not expect a hearing to take place Friday.

The union, which represents about 625,000 government workers, filed a similar lawsuit during the last government shutdown of 1995-96, but the shutdown ended before a judge heard the case and was eventually dismissed, Henderson said.

The union's latest lawsuit, filed in U.S. District Court in Washington, names Office of Management and Budget Director Jacob Lew and Office of Personnel Management Director John Berry as defendants.

"The Constitution requires an appropriation by Congress before federal dollars can be spent, no exceptions," Gage said. "Without an appropriation, the agencies simply can't spend money or incur debts by forcing employees to work."

Copyright 2011 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Video: Midnight deadline looms for budget shutdown

  1. Closed captioning of: Midnight deadline looms for budget shutdown

    >>> and welcome to "today" on this friday morning. i'm meredith vieira .

    >> i'm david gregory in for matt this morning. the clock is ticking for lawmakers who want to avoid a government shutdown by midnight tonight. not a lot of progress overnight. still a little bit better than 50/50. this is going down to the wire.

    >> as you said, some lawmakers said a deal is within reach but following late night talks at the white house , president obama said he's not wildly optimistic. we'll go to nbc's savannah guthrie at the white house for us. good morning.

    >> good morning, meredith. we are hours away from a shutdown. there is a good chance that's how it ends today. white house officials were optimistic behind the scenes . one said to me, we are close. staffers worked until 3:00 a.m . and republicans say the numbers just aren't there. today is washington's last day to make a deal. after another late-night meeting with congressional leaders at the white house produced no breakthrough.

    >> there are still a few issues that are outstanding. they're difficult issues. they're important to both sides. so i'm not yet prepared to express wild optimism.

    >> reporter: with aids now saying a deal is within reach, staffers worked again through the night to resolve the outstanding issuings. the two sides are close on the amount of spending cuts, likely to be between $34 billion and $37 billion. the parties are still sparring not about money but over so-called riders to the budget bill , policy provisions the republicans want like a measure to strip funding from planned parenthood . another provision would sharply limit the epa.

    >> the remaining issues are extremely narrow, but having said that i have been to this podium before and i have said we would narrow the issues and we have. but the sad part about it, we keep never quite betting to the finish line.

    >> reporter: with both sides at the brink on thursday, frustration spilled onto the house side.

    >> we are trying to do the business of the american people . [ booing ]

    >> so many of your folks, unless they get 100% are prepared to shut down the government.

    >> reporter: sarah palin took to twitter writing, obama's petulant obstruction equals shutdown. with the money running out at midnight, the federal government is moving ahead with shutdown plans. the president made clear he wants a verdict from the parties first thing today.

    >> because the machinery of the shutdown is necessarily starting to move, i expect an answer in the morning. and my hope is that i'll be able to announce to the american people some time early in the day that a shutdown has been averted.

    >> reporter: one other issue -- will members of congress get paid if there is a shutdown. the answer right now as it stands is yes. there was a measure that passed the senate yesterday that would have congress giving up its pay. it hasn't passed the house. david, just one measure of how acrimonious this has become. this morning white house officials are saying the disagreement is over the policy riders. the republicans say, no, it's all about the spending numbers. they can't even agree on what they are disagreeing about.

    >> savannah guthrie at the white house this morning for us. thank you very much. steny hoyer of maryland is the house minority whip . congressman, good morning.

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