Hundreds of thousands of federal workers are not receiving paychecks due to the government shutdown, but the White House has promised to pay some favored categories of employees such as servicemembers and immigration officials by shifting federal funds around in highly unorthodox — and potentially illegal — ways.
As The New York Times’s Tony Romm reports, the Trump administration has “stretched its authority” to pay some workers, despite a lack of approval for the payments from Congress, which controls spending under the Constitution.
To pay members of the military, Trump has tapped $8 billion from a special fund dedicated to research and development of weaponry while giving the Pentagon approval to use any leftover funds to meet payroll. To pay immigration agents and other law enforcement officials, the White House has turned to a $10 billion fund dedicated to border protection that was created by the massive tax and policy law last summer — though those paychecks have not yet been issued. Department of Homeland Security Secretary Kristi Noem said on social media last week that more than 70,000 federal agents will receive “super” paychecks on October 22 that cover all hours worked during the shutdown.
Legal scholars have questioned the White House’s drive to expand its power over spending, largely at the expense of Congress, but the Trump administration argues that the shutdown fundamentally alters the rules. The general counsel of the White House budget office said that under normal circumstances, the executive branch cannot shift funds from one account to another, Romm reports. But during the shutdown, the lapse in funding means that payment accounts no longer exist, the administration argues, giving the executive branch more leeway to use existing funds as it sees fit.
More broadly, the Trump administration and many of its conservative supporters argue that the executive branch should have far more power than it has claimed over the last few decades, including the right to freeze or redirect spending authorized by Congress.
Although pushback from Congress on the issue has been modest, some lawmakers are raising questions about Trump’s reprogramming of funds. “Look, I want the troops to be paid,” Democratic Sen. Brian Schatz said, per Politico. “But, as usual, they find the most illegal way to do everything.”
Some Republicans are concerned, as well. Sen. Jerry Moran, a senior Republican on the Appropriations Committee, told Politico that he wants the White House to follow the established rules. While paying troops is “a desired outcome,” Moran said, “there’s a process that’s required — by Constitution and by law — for Congress to be not only consulted but engaged.”
Republican Sen. Lisa Murkowski, another appropriator, also called on the White House to play by the rules. “There’s a way we take care of this,” she said. “It’s called appropriations. It’s called reprogramming. And I don’t think that process is being respected.”