The end of the longest partial shutdown in history is in sight — but thanks to some House Republicans refusing to rush back to Washington to pass it, the finish line is still almost two weeks away. These pouting House conservatives, however, are getting a reprieve from President Donald Trump. Trump posted on Truth Social last week that he would “soon sign an order to pay ALL of the incredible employees at the Department of Homeland Security.”
He followed through on Friday, signing a memo ordering his administration to “provide each and every employee of D.H.S. with the compensation and benefits” they’d have earned if the department weren’t shutdown. But until Congress says otherwise, the Department of Homeland Security doesn’t have the money to make good on this promise. In his attempt to let lawmakers off the hook, Trump is setting yet another dangerous precedent that threatens the balance of power in America.
Government shutdowns, be they full or partial, have gone from an anomaly to a regular part of the legislative toolbox. In theory, the lack of funding exerts enough political pain to eventually give way to a breakthrough on the seemingly insurmountable impasse of the moment. Legislators typically feel that pain directed their way from upset constituents, be it over an interruption of services for the public or missing paychecks for essential federal workers.
There’s no presidential American Express card that allows the White House to spend money that Congress hasn’t apportioned.
The Department of Homeland Security’s funding lapse has hit on both fronts, mainly thanks to the lack of money for the Transportation Security Administration. TSA agents have called out sick in droves during the last month, prompting massive lines at airports around the country. Other, less visible parts of DHS have also been suffering, including the Coast Guard and staffers with the Federal Emergency Management Agency.
Senate Democrats refused to pass a bill funding DHS without new restrictions on Immigration and Customs Enforcement and the Border Patrol, including a ban on wearing masks during immigration raids. Weeks of negotiations went nowhere, leading Senate Majority Leader John Thune, R-S.D., to pass a bill funding most of DHS but leaving ICE and Border Patrol’s budget for later. (The two law enforcement agencies are currently drawing money from the so-called One Big Beautiful Bill that Congress passed last year that gave both a several billion-dollar slush fund from which to draw funds.)
After initially dismissing the Senate deal, Speaker Mike Johnson, R-La., yielded last week, promising with Thune to get the ICE and Border Patrol funded in a party-line vote later this year. But a group of conservative lawmakers are so upset with the deal that they won’t even vote on it until Congress returns from spring break on April 13 — leaving DHS in limbo for almost another fortnight.
That degree of petulance would be much riskier if it weren’t for the president running cover for the absentee legislature. As it stands, the the idea that Trump can cause funding to appear out of nowhere is deeply troubling.
The memo Trump signed Friday builds on one issued last month to get backpay in TSA agents’ hands. The earlier directive ordered Homeland Security Secretary Markwayne Mullin and Office of Management and Budget chief Russ Vought to essentially figure out where the money is coming from. It memo specifically instructed them to “use funds that have a reasonable and logical nexus to TSA operations to provide TSA employees with the compensation and benefits that would have accrued to them.”
The administration has yet to give a public explanation for exactly which funding streams were drawn, but it’s possible that at least some was drawn from the pool of cash floating around ICE and Border Patrol. Friday’s memo is no more clear about which accounts will be drawn from to make the decreed payments. But it declares that once regular funding is restored “every effort should be made” to “adjust applicable funding accounts within DHS” to essentially make it like this whole thing never happened.
That kind of financial shuffling was eyebrow-raising enough when it was just for TSA. Somehow finding the means to pay the more than a quarter-million DHS employees when no new funding exists is a much bigger stretch, one that can’t be accepted as a done deal. It’s a power that no president has ever claimed and goes against the Antideficiency Act, a 150-year-old law that prohibits federal officials from spending or obligating money that Congress has not appropriated.
Vought has argued that the appropriations are essentially a ceiling, not a floor, allowing the administration to choose how much of that funding to spend. It’s a willful misreading of the law, but at least still requires Congress to first provide funds to the executive branch. Last year, during a total federal shutdown, Vought flirted with the idea of transferring funds from various accounts to fund administration priorities. There were several tricks he managed to pull off, but nothing at the scale of causing paychecks to materialize for over 260,000 employees.
Even if Trump and his advisers do think he has this ability, where was it earlier in the shutdown?
The promise of a bill coming down Pennsylvania Avenue eventually doesn’t grant Trump the authority to pre-spend that money. There’s no presidential American Express card that allows the White House to spend money that Congress hasn’t appropriated.
And even if Trump and his advisers do think he has this ability, where was it earlier in the shutdown? Why were any paychecks missed if the president can simply issue an I.O.U. from the Resolute Desk?
It’s a move that not only undercuts congressional authority but goes against the law at the heart of federal shutdowns. If money siloed off for one function under the law can be freely spent throughout the government, there’s no limit to how often a president can rob Peter to pay Paul. The Constitution’s clear instruction that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law” would be made worthless.
This may be yet another instance of the White House daring its opponents to challenge them. After all, who wants the poor optics of suing to get that money back from FEMA staffers — only to potentially see the case made moot once Congress acts? It’s a bluff that should still be called though. The safeguards that prevent the Treasury itself from becoming an at-will checking account for the executive branch should be defended at all costs.
Hayes Brown is a writer and editor for MS NOW. He focuses on politics and policymaking at the federal level, including Congress and the White House.