There have been nearly two dozen federal government shutdowns since 1976, and while shutdowns can’t be said to be rare, it is relatively infrequent that they last very long. Only five times during that span has a shutdown lasted longer than one week. As we write this post, we are on Day 3 of the current shutdown, and prediction markets are forecasting that it could persist well into mid-October.
With that in mind, we thought it would be helpful to provide our readers with a brief overview of how shutdowns affect selected federal agencies and departments most frequently encountered in the enforcement setting.
Department of Justice (DOJ)
On September 29, 2025, DOJ circulated its FY 2026 Contingency Plan to be implemented in the event of a lapse in appropriations. The plan contains pertinent information for the Department’s various functions, divisions, and agencies.
Criminal and Civil Divisions and U.S. Attorneys
Being presidential appointees, the Assistant Attorneys General leading up the Criminal and Civil Divisions are not subject to furlough; however, many of their employees—to the extent they are not excepted—will be furloughed. Exceptions generally cover perceived threats to national security, public safety, or other statutory carve-outs.
Specifically addressing litigation, the DOJ plan assumes that the federal court system will continue to operate during a shutdown. Accordingly, the plan sets forth that criminal litigation will “continue without interruption as an activity essential to the safety of human life and the protection of property.” Civil litigation, however, is to be “curtailed or postponed to the extent that this can be done without compromising to a significant degree the safety of human life or the protection of property.” In the first instance, Department litigators will seek continuances. In the event these requests are denied, “the Government will comply with the court’s order.”
Following these same litigation guidelines, U.S. Attorney offices have the ability to except employees as needed to address ongoing criminal matters and civil matters.
Readers should refer to the full contingency plan for information specific to each DOJ office.
Antitrust Division
As with other divisions, the Assistant AG leading the Antitrust Division is not subject to furlough, and the Division’s active litigation case load will hew to the criminal/civil requirements stated above. Additionally, the Division is authorized to except employees required for the preparation of cases “that must be filed due to statutory deadlines, but only when an extension or waiver cannot be obtained and Division leadership determines that allowing a proposed merger to go forward without objection would pose a reasonable likelihood of peril to property in which the United States has an immediate interest.”
Because the Antitrust Division is funded from no-year appropriations, its “activities may continue during a lapse as long as sufficient carryover funds remain and based upon input from Department leadership regarding mission requirements.”
Securities and Exchange Commission (SEC)
The SEC’s operational plan for a shutdown was circulated in early August 2025 and provides information regarding the agencies key functions during a lapse in appropriations. Readers should refer to it for specific information regarding Commission systems, processes, personnel, and functions.
On the enforcement front, the Division of Enforcement will have only a limited number of staff on duty to perform excepted functions. However, staff will attempt to respond to certain critical matters, including allegations of ongoing fraud and misconduct. The Tips, Complaints, and Referrals website will continue to be operational, and submissions will be reviewed for appropriate action.
Commodity Futures Trading Commission (CFTC)
The CFTC has also published a contingency plan relating to the shutdown. The Commission will maintain a limited staff of excepted employees and will otherwise cease the vast bulk of its operations, including but not limited to most functions of the Divisions of Enforcement, Market Oversight, Clearing and Risk and Market Participants. Reports and work related to rulemakings and other responsibilities mandated by Dodd-Frank Wall Street Reform and Consumer Protection Act will also cease.
Federal Trade Commission (FTC)
For information related to specific FTC services and functions, the public should refer to the FTC’s shutdown webpage for further detail. Similar to other agencies, the FTC chair is a presidential appointee and not subject to furlough. Otherwise, the agency will institute rolling furloughs for a significant portion of its workforce, and many agency functions will cease during the shutdown. Notably, the Premerger Notification Office (PNO) will remain open to accept filings but will not be available to answer HSR-related questions or grant early terminations, according to the FTC website.