WASHINGTON — It’s been a year full of money grabs by an executive branch that puts less weight on Congress’ “power of the purse” than any since the Nixon administration.
But President Donald Trump’s latest budget maneuver — paying military salaries out of unrelated research funding — has so openly flouted federal law as to make lawmakers’ appropriations authority, and Congress itself, practically irrelevant, critics argue.
“President Trump has been ignoring Congress’ authority to say which funds should be spent since the early days of this administration. He is now increasingly disregarding the requirement of an appropriation before spending money,” said David Super, a Georgetown Law professor and expert in federal budget law.
“This renders the appropriations process essentially meaningless if the president continues along this course,” Super said.
Trump’s official legal justification is that the Pentagon is using funds that Defense Secretary Pete Hegseth determined have a “reasonable, logical relationship” to military pay and benefits.
That “reasonable, logical” connection would be “consistent with applicable law,” including the so-called purpose statute, Trump’s directive released Wednesday says. That’s a longstanding part of federal budget law requiring that appropriations “shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.”
In an interview, a senior administration official fleshed out what they argue is the reasonable, logical use of unspent R&D funds to pay the troops.
The official said the military is a special category within the government that Congress always intended to keep fully funded. But because appropriations for military personnel accounts expired Sept. 30, the Pentagon had to tap unspent funds that have not yet expired to keep funding the military during a shutdown.
R&D accounts were the obvious place to find this money, given their two-year availability, and one logical connection is that personnel are needed to conduct that research, development, testing and evaluation that those accounts pay for.
‘Pale in comparison’
The argument doesn’t pass the smell test with critics on either side of the aisle, who argue it is simply an illegal power grab.
G. William Hoagland, a longtime Senate GOP budget aide, said Trump’s budget moves are “without precedent” and that President Richard Nixon’s flouting of spending directives — which led to the landmark 1974 budget law’s enactment — “pale in comparison.”
The 1974 law created the modern controls on presidential “impoundments,” requiring the executive branch to obligate funds consistent with enacted appropriations laws — unless Congress passes legislation rescinding certain funds identified by the president.
This year, Congress passed one such rescissions package. But Trump’s budget office has taken heat for freezing appropriated funds using its “apportionment” authority, or responsibility to ensure money isn’t burned through too quickly. In some cases, funding freezes have been blocked in court.
In one high-profile case that’s currently at the Supreme Court, Trump employed what’s known as a “pocket rescission,” or a loophole in the 1974 law requiring Congress to approve rescission requests within 45 days. In this case, the Trump OMB put a hold on $5 billion in foreign assistance funds within 45 days of Sept. 30, when the money expired.
Critics were already up in arms over that move, saying it’s a violation of impoundment law that basically neuters the power of the purse. Now, Trump has gone even further, they say.
Georgetown Law’s Super pointed out that OMB Director Russ Vought, the architect of Trump’s impoundment strategy, has argued that the 1974 law doesn’t require presidents to spend every penny of an appropriation. The law puts a ceiling on that spending, rather than setting a floor, Vought says.
Now, Super said, Trump “apparently does not even believe that” and instead contends the administration is free to spend money it doesn’t have or for purposes Congress did not intend.
Constitutional principles
The purpose statute is separate from the Antideficiency Act, which bars the administration from spending money in excess of available appropriations and is another cornerstone of federal budget law.
The Antideficiency Act is what requires the government to “shut down” during a funding lapse, other than special “excepted” functions critical to public safety and security, and programs that don’t rely on annual appropriations.
But the purpose statute is considered an equally bedrock constitutional principle, with its roots in Article I: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”
The senior administration official argued tapping Pentagon R&D funds to pay the troops doesn’t run afoul of the ADA because there is clearly money available. It’s the “purpose” of it that’s in question, and Congress’ intention in providing Pentagon appropriations, including for two fiscal years, was to have a functioning military.
When there is a functioning military personnel account, that’s what would fund salaries, the White House argues. So when those accounts have no money, it has to come from somewhere else.
And the president’s constitutional duties as commander in chief adds to this being a special case, which Trump alluded to in his “national security memorandum” laying out the troop funding maneuver on Wednesday. The president has identified a need for that money to carry out his duty to defend the nation, the thinking goes.
Other factors in the decision: the Pentagon couldn’t use “general transfer authority” to simply shift the R&D money into personnel accounts, because of a restriction on transferring money into expired accounts.
In addition, there’s a constitutional roadblock to tapping Pentagon funds appropriated in the “big, beautiful” budget reconciliation package (PL 119-21), which many expected would be the source of cash to pay the troops.
Article I restricts Congress’ power “to raise and support Armies” to appropriations that are available for no more than two years, as the R&D funds appropriated in the fiscal 2025 spending law are. The money appropriated in reconciliation is available for five years, making that a no-go.
‘King’ Trump?
It’s such a politically unassailable move — ensuring the troops got paid on time, despite the shutdown — that the Trump administration knew going in that any on-the-record critiques would lead to swift recriminations.
Predictably, no Democrats have stepped up to publicly oppose the funding shift in and of itself. But some question the legality of it and argue it further undermines trust in the appropriations process.
“I don’t know that he’s got legal authority ... to do any of this,” Sen. Christopher S. Murphy, D-Conn., said Thursday. “We all want to pay the troops, but ... these complicated schemes to pay the troops that he’s using is just evidence of how badly they want to avoid negotiations.”
Even some Republicans are chafing a little at the erosion of lawmakers’ authority.
“It’s always preferable that Congress not only be consulted, but when it comes to appropriations, the Constitution requires the appropriations to be done by Congress,” said Sen. Jerry Moran, R-Kan., who like Murphy is a senior Appropriations Committee member.
Bobby Kogan, a former Democratic budget aide, said Trump’s move to pay the troops using money that wasn’t appropriated for that purpose is “going to further neuter and further destroy our appropriations process.”
“At this point Trump is an appropriations king; he gets to do whatever he wants,” said Kogan, now with the left-leaning Center for American Progress.
As for Appropriations Committee members, Kogan said: “Obviously they have an existential question for themselves about what their job is.”
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(Peter Cohn and Aris Folley contributed to this report.)
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