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In October 2025, with the government shut down and military paychecks at risk, President Donald Trump announced he would direct the Pentagon to pay service members on time—with or without Congress. The move sparked a constitutional debate about the balance of power between the executive and legislative branches.
This analysis examines the legal, statutory, and constitutional frameworks governing federal spending during a shutdown, exploring arguments on both sides.
The Power of the Purse
The Appropriations Clause in Article I, Section 9, Clause 7 of the Constitution provides the foundation for congressional control over federal spending. It states: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”
This isn’t a guideline. It’s a strict limitation on the executive branch, designed to prevent presidents from operating without the consent of the governed. By placing funding authority in the legislature—the branch most directly accountable to voters—the framers created the ultimate check on presidential power.
The Supreme Court has consistently interpreted this clause as an absolute restriction on executive spending. Court rulings confirm that any exercise of power by the executive or judicial branches that would spend public funds is limited by this “valid reservation of congressional control over funds in the Treasury.”
Even the President’s constitutional powers as Commander in Chief don’t grant an independent right to spend money. As the Supreme Court stated in 1850, no government officer, “not even the President,” can pay the debts of the United States without a specific appropriation from Congress.
This creates an intentional tension. The President must execute the laws and command the armed forces under Article II, yet can’t do so without resources authorized by Congress under Article I. This financial dependency is a core feature of the American system, forcing cooperation and preventing unchecked executive power.
A government shutdown represents the ultimate manifestation of this designed conflict. The President’s duty to operate the government collides with Congress’s exclusive power to withhold funding.
The Appropriations Clause leaves no room for interpretation based on executive need, national emergency, or political convenience. The only relevant legal question: Has Congress passed a law appropriating specific money for a specific purpose?
Any defense of the President’s unilateral action to pay the military must find justification within the complex web of spending statutes Congress itself has enacted.
The Antideficiency Act
If the Appropriations Clause is the constitutional foundation, the Antideficiency Act is the statutory enforcement mechanism. Codified in Title 31 of the U.S. Code, the ADA translates constitutional principle into direct, enforceable prohibitions for every federal official.
The law dates to the post-Civil War era. It was enacted to stop executive agencies, particularly the military, from spending their entire annual budget in the first few months of the fiscal year. These agencies would create “coercive deficiencies” that effectively blackmailed Congress into appropriating more money to cover existing contracts and avoid governmental default.
The ADA makes it illegal for any federal officer or employee to:
- Make or authorize an expenditure that exceeds the amount available in an appropriation or fund
- Involve the government in a contract or obligation to pay money before an appropriation has been made
- Accept voluntary services for the government, except in emergencies
The modern government shutdown is a direct consequence of Attorney General opinions issued in 1980 and 1981. These opinions interpreted the ADA’s prohibitions strictly, concluding that when a funding gap occurs, agencies must cease all “non-essential” operations to avoid illegally obligating the government to pay for services without appropriated money.
Personal liability for violations
The ADA’s power lies in its transformation of constitutional principle into personal liability. A violation can trigger severe administrative discipline, including suspension without pay or removal from office.
For officials who “willfully and knowingly” violate the law, the ADA imposes criminal penalties: a fine up to $5,000, imprisonment up to two years, or both. This shifts the risk from an abstract conflict between President and Congress to a concrete, career-altering risk for budget officers, contracting officials, and agency heads who must authorize spending.
The emergency exception
The Act contains narrow exceptions. The most relevant during a shutdown allows activities necessary for “emergencies involving the safety of human life or the protection of property.”
Under this exception, critical functions like national defense, federal law enforcement, and air traffic control continue. Employees performing them are “excepted” from furlough.
This creates the central paradox. The ADA’s emergency exception legally requires active-duty service members to keep working to protect the nation. But the ADA’s core prohibition forbids the government from obligating funds to pay their salaries without an appropriation.
The law mandates service while simultaneously prohibiting payment, generating immense political pressure on both branches to find a solution.
The Pentagon’s Financial Tools
The Department of Defense manages one of the world’s largest and most complex budgets. To respond to rapidly changing global conditions, Congress has granted it limited authorities to move funds around after an annual budget is passed.
Understanding the legal distinction between these authorities is essential to evaluating the President’s directive.
Reprogramming
Reprogramming shifts funds within a single appropriation account. If the Army needs more of one type of missile and less of another, it can reprogram funds between those line items within its “Procurement, Army” account.
This is generally considered inherent executive flexibility, allowing the DOD to adjust to programmatic needs without a new law. But it’s not unlimited. The DOD’s Financial Management Regulation requires the department to notify or obtain prior approval from congressional defense committees for any reprogramming above certain dollar thresholds.
Transfer authority
A transfer is far more significant. It shifts funds from one appropriation account to another—for instance, moving money from the “Research, Development, Test, and Evaluation, Air Force” account to the “Military Personnel, Air Force” account.
Unlike reprogramming, there’s no inherent authority to transfer funds between accounts. A transfer is illegal unless Congress has passed a specific law explicitly authorizing it.
The most significant authorization is the General Transfer Authority (GTA), a provision Congress typically includes in the annual defense appropriations act. The GTA for Fiscal Year 2024 allowed the Secretary of Defense to transfer up to $6 billion between military accounts.
This authority is strictly conditioned. The law states funds may only be transferred to finance a “higher priority item, based on unforeseen military requirements,” and can’t be used for any item Congress has previously denied funding.
The Purpose Statute
A separate law known as the “Purpose Statute” (31 U.S.C. § 1301) reinforces this structure. It mandates that funds appropriated by Congress “shall be applied only to the objects” for which the appropriations were made.
Money designated for research can’t legally be spent on salaries. Money for shipbuilding can’t be spent on aircraft, unless a specific transfer authority allows the funds to change purpose.
| Feature | Reprogramming | Transfer |
|---|---|---|
| Definition | Shifting funds within the same appropriation account. | Shifting funds from one appropriation account to another. |
| Scope | E.g., Moving money from one weapon program to another within the “Procurement, Army” account. | E.g., Moving money from the “Research & Development” account to the “Military Personnel” account. |
| Legal Basis | Generally an inherent flexibility of executive management, governed by DOD regulations and congressional oversight. | Requires explicit statutory authority granted by Congress in an authorization or appropriations act. |
| Congressional Role | Often requires notification or prior approval from defense committees for actions above certain dollar thresholds. | The authority itself is created by law. Use often requires further notification to Congress. |
The intricate rules create a form of “shadow legislative process.” While the full Congress votes on top-line budget numbers, the power to approve or deny the DOD’s subsequent requests to move billions of dollars gives the chairs and ranking members of the four key defense committees immense, ongoing influence over defense policy long after the budget is enacted.
The 2013 Precedent
When faced with military personnel going without pay, there’s a clear, legally sound solution: Congress can pass a law. The quintessential example is the Pay Our Military Act, enacted just hours before the 2013 government shutdown.
Facing a partisan impasse, a broadly bipartisan Congress swiftly passed, and President Barack Obama signed, this standalone legislation. The law stated: “There are hereby appropriated for fiscal year 2014, out of any money in the Treasury not otherwise appropriated…such sums as are necessary to provide pay and allowances to members of the Armed Forces.”
This was a model of constitutional propriety. It was a specific “Appropriation made by Law,” as required by the Appropriations Clause, designed to solve the precise problem of military pay during a funding lapse.
The law was also notable for its scope. It not only covered uniformed service members but also appropriated funds to pay civilian personnel and contractors the Secretary of Defense deemed essential for supporting the troops.
This provision proved crucial. Lawyers at the Departments of Defense and Justice interpreted this support language broadly, reasoning that civilian payroll staff, maintenance crews, and base support personnel all “contribute to the morale, well-being, capabilities and readiness of service members,” which allowed the Pentagon to recall nearly all of its furloughed civilian workforce.
Why this matters
The 2013 experience underscores two critical points.
First, it reveals the deep interconnectedness of the modern military enterprise. Paying a soldier in the field requires also paying the civilian accountant who processes the transaction, the technician who maintains their equipment, and the staff who run the facilities where their family lives.
Second, the very existence of POMA and similar “Pay Our Troops” bills that are frequently introduced when a shutdown looms serves as a powerful counterargument to claims of inherent presidential authority.
If the President already possessed the constitutional power as Commander in Chief or the statutory power via transfer authorities to pay the military during a shutdown, there would be no need for Congress to pass a special law granting that authority.
The fact that both branches have historically acted as if such a law is necessary implies a shared understanding that, absent a specific appropriation from Congress, the President’s hands are tied.
The October 2025 Directive
Against this legal backdrop, the Trump administration’s actions in October 2025 represent a direct challenge to established norms.
On October 11, with the shutdown in its eleventh day, President Trump announced via social media that he would not permit service members to miss their paychecks. He stated he was exercising his “authority, as Commander in Chief, to direct our Secretary of War, Pete Hegseth, to use all available funds to get our Troops PAID on October 15th.”
The White House Office of Management and Budget quickly provided specifics. The administration planned to redirect approximately $8 billion from “unobligated” funds in the Pentagon’s Research, Development, Test, and Evaluation (RDT&E) accounts from the previous fiscal year.
The choice of this funding source was a strategic legal maneuver. Unlike most military appropriations, which expire on September 30, RDT&E funds are typically “two-year” money. Funds appropriated for Fiscal Year 2024 remain legally available for new obligations until September 30, 2025.
By tapping prior-year funds, the administration could correctly claim the dollars themselves were still legally “available” for use, overcoming one primary hurdle of the Antideficiency Act.
But this solves only half the legal problem. While the funds may be available, they were appropriated by Congress for research and development, not salaries. The administration’s plan deliberately ignores this second, equally important legal constraint imposed by the Purpose Statute.
Political framing
The public framing of the directive was a calculated political act. By invoking “Commander in Chief,” the President’s announcement bypassed the technical complexities of appropriations law.
It reframed the issue as presidential leadership and support for the military, contrasting it with a dysfunctional Congress. This strategy aims to win the battle in public opinion, regardless of legal merits, placing opponents in the difficult position of appearing to stand against paying troops.
Notably, the initial directive appeared to exclude the U.S. Coast Guard, which falls under the Department of Homeland Security, setting the stage for a repeat of the 2018-2019 shutdown in which Coast Guard members worked without pay while their DOD counterparts were eventually compensated.
Arguments Supporting Presidential Authority
While the President’s directive faces significant legal obstacles, the administration can advance several arguments to defend its legality.
Commander in Chief authority
The broadest argument rests on the President’s Article II role as Commander in Chief of the armed forces. Proponents would assert this power isn’t merely operational but also entails an inherent responsibility to ensure the readiness, morale, and well-being of the military.
A failure to pay service members, the argument goes, directly threatens these core interests, creating a national security imperative that allows the President to act. This treats military payment as an essential component of command, inseparable from the power to direct forces.
This is the weakest potential defense. The Supreme Court has repeatedly held that Commander in Chief power is “purely military” and doesn’t grant authority to appropriate funds—a power the Constitution explicitly vests in Congress.
The landmark case of Youngstown Sheet & Tube Co. v. Sawyer is instructive. In that 1952 decision, the Court ruled that President Truman couldn’t seize private steel mills to support the Korean War effort, holding that even a wartime Commander in Chief can’t unilaterally seize private property in defiance of constitutional structure.
This precedent strongly suggests the President’s war powers don’t override other fundamental constitutional provisions, including Congress’s exclusive power of the purse.
Permissible use of General Transfer Authority
This is the administration’s most plausible statutory argument. The defense would be that the action constitutes a legal transfer under the General Transfer Authority granted by Congress in a previous defense appropriations act.
The administration would contend that a government shutdown, while political in origin, creates an “unforeseen military requirement” by cratering troop morale, causing financial hardship for military families, and ultimately degrading readiness of the all-volunteer force.
Under this interpretation, ensuring troops are paid becomes a “higher priority item” than the R&D projects for which funds were originally intended, meeting the legal conditions for using the GTA.
The strength of this argument hinges on whether a court would accept such an expansive definition of “unforeseen military requirement.” Opponents would argue a shutdown is a predictable outcome of the political process, not a sudden operational contingency like a new conflict or natural disaster.
Necessary implication of excepted service
A final argument could be based on the “necessary implication” doctrine. This legal theory, derived from Department of Justice guidance, allows certain unfunded government activities to continue if they’re deemed essential to performing other legally authorized functions.
The administration could argue that since federal law requires military members to work during a shutdown as “excepted” personnel, there’s a “necessary implication” that the executive branch must have a mechanism to pay them for this compelled service.
This would be an aggressive and unprecedented expansion of the doctrine. The “necessary implication” exception typically applies to small-scale, ancillary functions, such as allowing a handful of payroll staff to remain on duty to process payments from accounts that are funded.
Applying it to create a new, multi-billion-dollar obligation for an entire workforce whose funding has lapsed would likely be viewed by courts and the Government Accountability Office as a violation of the Antideficiency Act’s central purpose—preventing the creation of obligations in advance of an appropriation.
Arguments Against Presidential Authority
The legal arguments challenging the President’s directive are formidable and rooted in the plain text of the Constitution, foundational fiscal statutes, and a long history of legal interpretation.
Direct violation of the Antideficiency Act and Purpose Statute
This is the central and most powerful legal challenge. The President’s directive orders a federal official—the Secretary of War—to incur an $8 billion obligation for military salaries for which no appropriation has been made by law. This appears to be a textbook violation of the Antideficiency Act’s prohibition on obligating funds in advance of an appropriation.
The directive explicitly commands that funds appropriated by Congress for one purpose (research and development) be used for a completely different purpose (personnel salaries). This is a clear violation of the Purpose Statute (31 U.S.C. § 1301), a cornerstone of federal fiscal law.
The GAO, which serves as the legislative branch’s authoritative arbiter on proper use of appropriated funds, has consistently held in its legal decisions that moving funds between appropriation accounts for unrelated purposes without explicit statutory authority is illegal.
An official opinion from the GAO finding the administration’s action to be a violation of law would carry immense weight and could trigger formal reporting requirements to Congress under the ADA.
Usurpation of Congress’s constitutional power
Beyond statutory violations, the President’s action represents a profound challenge to the constitutional separation of powers. By unilaterally deciding to fund military pay by defunding research programs, the President is substituting his own budgetary priorities for those of Congress.
This effectively seizes the legislative power to decide how public money should be spent.
If a president can declare that paying troops is a higher priority than R&D programs Congress chose to fund, there’s no logical limit to this authority. A president could similarly decide that building a border wall is a higher priority than military housing, or that funding a favored agency is more important than one Congress prioritized, nullifying the appropriations process entirely.
The existence of the 2013 Pay Our Military Act serves as powerful evidence that Congress knows how to solve this problem through proper legislative process. The President’s choice to act unilaterally, rather than demanding Congress pass a similar clean funding bill, is a deliberate circumvention of that process.
Lack of true emergency or statutory authority
The administration’s potential justifications under the ADA’s exceptions or DOD’s transfer authorities rest on shaky ground. A government shutdown is a political impasse, not an “emergency involving the safety of human life” in the narrow, imminent sense required by the ADA.
While a pay delay is harmful to military families, it doesn’t meet the high legal standard of an immediate threat that would permit the government to incur obligations without an appropriation.
The attempt to use the General Transfer Authority by labeling the shutdown an “unforeseen military requirement” is a legal fiction that stretches the statute’s meaning beyond breaking point.
The GAO has previously found that the Trump administration “acted unlawfully” in its interpretation and use of federal funds during past funding disputes, suggesting the watchdog agency would take a highly skeptical view of this novel legal theory.
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