Experts warn that US President Trump's decision to pay salaries to the US military amid the government shutdown has set a dangerous precedent. They see this as another attempt by Trump to transfer monetary power from Congress to the executive branch.
By ordering US military pay even during a government shutdown, Donald Trump is meeting the demands of a politically untouchable electorate stuck in Congress over federal spending, The Guardian writes.
But experts who spoke to The Guardian warned that what Trump is doing is almost certainly illegal and, if left unchecked, will undermine Congress's constitutional authority to control government spending.
Some fear it could set the stage for the president to unilaterally fund other controversial decisions in the future, such as stationing troops on US soil.
“I agree with those who say there really isn't a good legal basis for moving money this way,” said Phil Wallach, a senior fellow at the right-wing American Enterprise Institute and an expert on the separation of powers in the US government.
“Congress has not authorized payments to the military in this new fiscal year,” the expert reminded, “So this goes beyond the law and simply forces anyone to do something about it. Because, of course, essentially, no one thinks that paying the military is a very bad thing.”
The US federal government shut down in early October after Democrats and Republicans in Congress could not agree on legislation to extend funding beyond the end of September, The Guardian highlighted. About 700,000 federal workers have been temporarily laid off, while hundreds of thousands of others continue to work without pay.
Bobby Cogan, a former White House Office of Management and Budget official who now works for a libertarian think tank, said military members were paid during previous government shutdowns because Congress approved Defense Department spending or passed special bills guaranteeing their salaries.
Congress has not taken those actions at this time, although lawmakers unsuccessfully tried to pass legislation related to federal worker pay through Congress this week.
Last week, Trump acted unilaterally, transferring $8 billion from the Department of Defense's research and development fund to pay the military in mid-October. Kogan called the decision “illegal” under federal law.
“If you're trying to spend money you have on the wrong things, you're in trouble. And if you're trying to spend money on things you don't have money for, then you're in trouble,” the analyst said.
On Thursday, Trump said an unnamed “friend” contributed $130 million to pay military personnel during the government shutdown; The New York Times later reported it was reclusive billionaire and Trump supporter Timothy Mellon. Sean Parnell, press secretary for the Pentagon, confirmed the amount of money received was “consistent with the agencies with general gift receiving authority.” The donation was made on the condition that it be used to offset the cost of military salaries and benefits.”
Christopher Mirasola, a law professor at the University of Houston, said government employees who carried out Trump's money orders could theoretically be prosecuted for violating a law called the Anti-Deficiency Act. But such prosecutions have never happened in the past, and he said in an interview that he found it difficult to believe Trump's Justice Department or even another president would carry them out.
“I'm just not sure that a future administration will want to hire career government officials who at that point have endured years of abuse by authorities for enforcing something even when they knew it was illegal,” Mirasola said.
Trump opponents who have tried to sue — such as Democratic lawmakers or civil society groups — may have difficulty proving that they were harmed by paying the military, a necessary component of suing, Kogan said.
“You are in a difficult position coming before this Supreme Court, at least under the Trump administration,” he noted.
Experts see Trump's decision to pay the military as his latest effort to shift budgetary responsibility from Congress to the executive branch, but disagree about its significance in the long term. Since taking office, he has used various methods to block government spending in areas his administration opposes, including controversial decisions on foreign aid funding allocations.
“I think the crisis will start to be felt more deeply if we see the president funneling money into politically controversial things,” Phil Wallach said. Also noted that paying the U.S. military is “something everyone basically agrees on.”
Wallach said the ball is now in the court of the Republican-controlled Congress, which must make clear that it is the one making the spending decisions.
“I certainly don't think the Republicans want the White House to take matters into their own hands. I'm actually pretty sure they're concerned about this move and want to get rid of it as quickly as possible,” he pointed out.
Kogan warned that Trump is launching an attack on Congress's appropriations process, through which lawmakers, who typically work in a bipartisan manner, determine how much the government will spend and on what.
“If the president can completely ignore everything, can spend money to stay afloat, he can empty the account and use it for whatever he wants, right?” – Kogan said. “Like, what are we doing here?” That makes you the king of usurpation.”
Paradoxically, such decisions could make it difficult to reach a deal to reopen the government, undermining confidence in Congress, which trusts Trump to carry out any legislative deal struck by Democrats.
“The whole purpose of a budget deal is to figure out how you're going to allocate your limited resources. We're going to figure out what we want to prioritize in government, and if the president has the power to unilaterally and completely ignore every part of that deal, then how are you going to allocate funds? How are you going to make fiscal deals?” – Kogan asked.
Mirasola linked the pay decision to Trump's deployment of the National Guard in cities across the country, including Washington, Chicago and Portland. He believes that many federal laws governing the use of military force on American soil are outdated and that the main obstacle Trump faces is his ability to persuade Congress to pay for troops.
“If my theory that appropriations are the most important constraint on domestic military deployments is correct, then moves to remove Congress from the appropriations process are a real blow to one of the most important amendments to the President's authority to use the military in the United States,” the expert commented.
