President Donald Trump’s creative funding solution to bypass congressional gridlock might ease multi-hour airport security lines in the short-term. However, it relies on a legal rationale that is more complex and contested than the White House’s framing suggests, which analysts say erodes congressional budget powers.
The president’s executive action on Friday declared the lack of funding for Transportation Security Administration employees and the mess it created at major airports “an emergency situation compromising the Nation’s security.” By Monday, the agency announced most of its agents had been paid.
The memorandum had instructed the budget office to find other funds within the Department of Homeland Security that could be used to pay airport security agents. The hitch is that the Constitution gives spending authority to Congress. Mr. Trump is not the first president to try pushing the boundaries of the executive’s role in directing government funding.
Why We Wrote This
President Donald Trump used an executive memorandum to get around congressional gridlock and pay airport security workers. But the Constitution gives the legislative branch exclusive responsibility to appropriate funds, a power presidents of both parties have eroded.
In effect, money can only be spent for the purposes spelled out by the legislative branch, and presidents cannot shuffle funds from one purpose to another without congressional authorization, according to U.S. law.
“The president’s allies in Congress seem happy to see him do this even though it does erode their power in the long run, which means more and more power accumulating in the executive branch,” says Zachary Price, a professor at the University of California College of the Law in San Francisco. Mr. Price wrote an academic article in February reviewing the history of spending tussles between Congress and the executive branch.
The Friday memorandum does not say which DHS accounts will be used. The most likely source is a $10 billion fund set up under the One Big Beautiful Bill Act that was established to keep DHS agencies running if Congress could not agree on funding. The act is vague about the purposes the fund can be used for, noting that the money can be used “for reimbursement of costs incurred in undertaking activities in support of the Department of Homeland Security’s mission to safeguard the borders of the United States.”
The bill also provides $12 billion for DHS to reimburse costs for activities “in support of securing U.S. borders.” This provision does not define who could be reimbursed, likely allowing it to be used to reimburse states, localities, and tribal governments, as well as “other agencies within the department” for expenses associated with securing U.S. borders.
“I don’t think there is a sound legal basis” for the order, says David Super, a professor at Georgetown University Law Center and a specialist in legislation related to the federal budget. ”If there was one, they would have spelled it out.”
The problem of presidents spending without authorization goes well beyond President Trump.
President Barack Obama spent funds outside of authorization in a number of cases, including maintaining Affordable Care Act subsidies without a congressional appropriation. President Joe Biden halted construction of a border wall even though Congress had appropriated funds for it. He also notably tried to spend around $400 billion to forgive student loans, which the Supreme Court ruled had no congressional authorization.
Professor Price wrote in his article that “recent presidents have repeatedly taken legally aggressive actions in arguable defiance of appropriations enactments, and the scale and brazenness of some such actions give reason to worry that legal limits on unilateral executive spending choices are fraying.”
Though the laws are clear that Congress has the “power of the purse,” challenging unauthorized presidential spending is a persistent problem. Professor Super notes that when Mr. Trump paid troops during the government shutdown last October, he said the funds would be taken from Defense Department research and development accounts.
“That was an illegal transfer,” says Professor Super. “The Antideficiency Act makes it a crime, a felony, to spend money without authorization. Whoever committed funds last fall committed a crime but no one in the [Justice Department] has an interest in challenging that.”
The attorney general could challenge the legality of executive branch spending, but being part of the same branch makes such an action unlikely. When President Biden attempted to forgive student debt without authorization, the legal challenge came not from his government, but from states that showed their student loan collection bodies would suffer damages under the debt forgiveness.
The Supreme Court has ruled that individual members of Congress can’t sue over the executive branch spending funds outside of congressional authorization. The entire House of Representatives or the Senate could theoretically challenge in court, but that has not happened. When the same party controls both the White House and Congress, there is little political interest in challenging the president.
So, one route could be to just avoid the sort of government shutdowns that motivated this particular spending decision, even though it wouldn’t resolve other instances of presidents writing checks that Congress hasn’t authorized.
G. William Hoagland, a budget expert at the Bipartisan Policy Center who served 25 years as a Senate staffer on budget and appropriation matters, argues that the House and Senate should enact rules that automatically extend funding in the event of such disputes.
So far, it doesn’t have enough support in Congress, perhaps in part because the shutdowns create leverage that partisans can use to score political points. Congress is already midway through the government’s fiscal year and is still tied up arguing over current year funding.
“They are way behind schedule, which means we will be seeing shutdown pressures on the next budget,” Mr. Hoagland said.
His proposal would eliminate the drama, he says.
“If by the start of the year, Congress has not passed all 12 federal budget bills, all funding would continue on an automatic continuation.”
