In a previous post, I discussed the DoD transfer of $8 billion from R&D accounts to pay military personnel. I argued that while the issue was not free from doubt, there was a reasonable and good faith argument that this transfer was authorized by Congress in a statute giving DoD “general transfer authority” up to $8 billion. This is great for military members and their families, but it is only a stop gap measures. Given that total military pay exceeds $190 billion annually, at best this will ensure that military members get one more paycheck—and then no more.
Is there a solution? Yes! There is a bill introduced by the Democrats in Congress that would authorize DoD to pay military members during the shutdown. Sadly, the Republican leadership has refused to allow a vote.
Instead of taking the legal route to pay military members, the Trump Administration has apparently decided to ignore the Constitution and the U.S. Code by transferring other appropriations (above the $8 billion allowed by Congress) to pay the military. In a National Security Presidential Memorandum issued yesterday, asserting his authority “as the Commander in Chief of the Armed Forces of the United States under Article 2 of the United States Constitution”, Trump directed the DoD Secretary “to use for the purpose of pay and allowances any funds appropriated by the Congress that remain available for expenditure in Fiscal Year 2026 to accomplish the scheduled disbursement of military pay and allowances for active duty military personnel, as well as for Reserve component military personnel who have performed active service during the relevant pay period.”
The problem with this scheme? Article 2 of the U.S. Constitution gives the President no such authority over the spending of federal monies. To the contrary, the Constitution gave this authority to Congress in Article 1, which gives Congress—not the President—the authority to make spending decisions about the U.S. Government (including the military). To gives Congress the power “To raise and support Armies” and “To provide and maintain a Navy”, and even more pointedly, Article 1, Section 9 provides “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”
The Constitution could not be clearer: unless Congress has appropriated funds for a purpose, it is unconstitutional for the President to spend funds. Congress has zealously protected this power and has even made it a criminal offense to spend monies that violate their appropriations. Under the Anti-Deficiency Act, no federal office or employee of the federal government may “make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation.” “Knowingly and willfully violating” this provision subjects the officer or employee to prosecution of a felony.
Now the President may be immune for violating this statute, but the Secretary of Defense and any DoD employee involved in the transfer are not immune and face potential criminal prosecution. Paying military members is certainly a worthy cause, but are DoD employees really willing to risk criminal prosecution by a future Administration?
But does the Memorandum really order an unlawful transfer of appropriations? I think not. Reading this memorandum more carefully, it is apparent to me that this is simply political theater. Not a dime of federal money will ever go to military members as a result of this order. The Memorandum has a curious condition of the directed transfer: payment for military members must be “consistent with applicable law, including 31 U.S.C. 1301(a).”
What does 31 U.S.C. 1301(a) provide? It repeats the Constitutional requirement “Appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.” In other words, military members will only get paid from funds that Congress has appropriated for military pay—and there are no such appropriations.
I see two possibilities here—both bad. The worst option is that despite the reference to “consistent with applicable law”, this really is intended to order DoD to illegal pay military members from funds Congress appropriated for other purposes.
In my view, the more likely option is that this is nothing more than political theater. Trump can falsely claim that he has found a way to pay military members and then blame “DoD lawyers” when DoD decides it can’t pay military members in any way “consistent with applicable law.”