An untested legal theory that the White House doesn’t need to pay furloughed workers once the partial shutdown ends shook up Capitol Hill on Tuesday, while Democrats appeared emboldened in their demands to renew expiring health care subsidies.

A draft memo from the Office of Management and Budget’s top lawyer arguing that the 2019 law guaranteeing retroactive pay once a shutdown ends draws a distinction between workers who are furloughed and those who are forced to remain on the job due to the critical nature of their work.

Mark Paoletta, the OMB general counsel, wrote that the 2019 law is “not self-executing” and requires further appropriations to pay furloughed workers as part of stopgap legislation to end the funding lapse.

The memo, which is labeled “pre-decisional and deliberative,

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