Trump's mechanism to pay the troops during the shutdown is by far the most illegal budgetary action he's taken as POTUS, potentially setting the stage to break everything. It's also needless because Congress would easily pass a troop pay bill if Johnson were willing to gavel in. Long thread.
The mechanism through which Trump is paying the troops is the most blatant large Antideficiency Act (ADA) violation in US history. It's also clearly willful. No one has been charged under the ADA before, but violations carry a two-year jail term. The statute of limitations is five years. Under the Constitution and under the ADA, it is illegal to spend money without funding for that purpose. The president may not spend money to do something unless there's actually money to carry it out and that action is expressly allowed.
Most money has what's called a period of availability. You can go about obligating it only during that period. While it's illegal to not use it all (that's the illegal impoundments Trump has been doing all year), after that period of availability ends, you can't use it anymore. Military pay is appropriated one year at a time, with a one-year period of availability. The fiscal year ended on September 30th, and we did not pass new appropriations bills (the government is shut down), so there's no money available to pay the troops (or to do lots of things). When money is appropriated, it's also authorized to be used only for certain activities. So if you give $50 million to the Department of Transportation to build bridges, it couldn't use that money to build airports instead. There is certain limited "transfer authority." When Congress writes its annual appropriations bills, it tends to give the president some authority to move some money from one budget account into a different budget account. But there are lots of bells and whistles. In the case of DOD, there's a limit of $8 billion. And, importantly, when you move money from one account to another account, that money has follow the allowable uses and the period of availability of that new account. So now let's dig into the specifics. Trump is using money from the research development testing and evaluation funds (RDTE) account. Why does that still have money? It's period of availability was October 1, 2024-Spetember 30, 2026. It was meant to be spent over 2 years, so it has a lot left in it. But here's the problem: if you tried to transfer that money into the military personnel accounts (milpers), it would immediately transform into money whose period of availability ended on September 30, 2025 - and thus not be usable anymore, despite the money existing. There may also be a technical problem. Their system may not allow obligation from an account whose funding has lapsed. And there *are* no FY2026 milpers accounts yet, so their system may not have even allowed Trump to transfer to a non-existent FY2026 account and illegally spend anyway. You can check the milpers accounts in the OMB apportionment website. There is no money transferred into those accounts for them to use. No money has been transferred from RDTE to milpers. Instead, what happened? They spent RDTE money, which can only be used on RDTE, on milpers. The White House told approps they would not be transferring the money. Not now, not ever. They said, explicitly, that they'd use RDTE money on milpers. Direct deposits went out yesterday. No transfers happened. They spent RDTE money, which can only be used on RDTE, on milpers. That is profoundly illegal. You may not spend money on a purpose without funding. The constitution expressly forbids it, as does the ADA. And the craziest part is this was needless. Congress would've passed a military pay bill with near unanimous support! Congressional Ds have been begging Rs to bring a bill to pay the military to the floor! But Johnson refuses to gavel in because he doesn't want an Epstein vote.
So just how bad is this? I got a text from an appropriator friend saying "The Republic has fallen. Pack it in." I think there are five levels of potential badness here. Once you've decided to violate the ADA, you're only bound by self-imposed limitations. But depending on what the White House is self-imposing, this can range from "BAD" to "The Republic has fallen, pack it in." Let's start with the most narrow. If it were still August 2025, the White House could have transferred money from RDTE to milpers and spent it with no problems whatsoever (as long as total transfers from the defense bill didn't exceed $8 billion). What would have made a transfer and spend illegal is we're now in FY2026, and we have a two-year versus one-year account issue. But they're taking money that Congress gave, to go to activity that Congress allowed, sticking within the $8 billion limit Congress set, doing what'd be allowed a few months ago. If that's the justification, that's merely BAD and unconstitutional. Under that limitation, this really would just be a one-time fix - if they really do feel bound by the $8 billion transfer limit (again, they didn't actually transfer the funds, but there may have been system limitations; they were originally talking about transferring funds). Now let's go to the next level. Do they think they could do this again? There's not enough money left in RDTE to do this again on November 1. But across ALL military accounts under the defense bill with the general transfer authority (GTA), is there? Maybe they don't care about the GTA size limit or time period limit, but feel bound to stay within the same approps bill or department. Imagine President AOC transfers 100% of the money from ICE to FEMA disaster relief. Still keeping all the money within annual bills inside DHS. At the next level, imagine they don't feel bound by GTA limitations at all. If they don't, we're now basically saying POTUS can move any money he wants to anywhere else - but theoretically they might still believe the money needs to exist, and the usages needs to be allowed. Imagine President AOC moved money from ICE to Section 8 instead. That action would normally be illegal, because there isn't GTA to do that (different approps bills, so you can't do that swap). At the next level of badness, they might choose to simply spend money that doesn't exist. So instead of spending out of an account for a purpose that's not allowed, like they're doing with RDTE to fund milpers activities, imagine someone chooses to spend money that doesn't exist. So imagine they just choose to spend more on ICE than exists. They don't transfer money into ICE. They don't spend down an existing account that has nothing to do w/ ICE to instead fund ICE activities. Imagine they just say "nah, we're gonna spend $100 billion on ICE this year." Imagine President AOC decides to spend $100 billion on public housing. We're still only spending on activities Congress has authorized. We're just doing more than Congress allowed, and we're not even pulling money from anywhere else. And I think the final level of badness would be spending on activities Congress hasn't authorized. That could be something like Trump sending everyone who voted for him a $500 check. Or President AOC doing the Green New Deal without any laws passed. Once you've decided to violate the ADA, even in the most narrow sense, all of those levels of badness are theoretically open to you. The only thing that matters is your own self-imposed restrictions. In the executive order, Trump says only to use DOD money, but no limitation on allowable use or GTA limit. But again, once you've decided to violate the ADA, the only restrictions are self-imposed. What's to be done about ADA violations? Well, the White House is not going to prosecute itself. The statute of limitations is five years, so we'll see, particularly if they do a bunch more ADA violations. This is the third ADA violation I know of in nine months. Absolutely wild. So now we get to suits to stop stuff, and standing. It depends on which form they're doing. If they're spending out of an account for a purpose not allowed (like with this), there's probably standing (if SCOTUS isn't awful). There's maybe standing to stop bad transfers. But if they want to just spend from an account that doesn't have budget authority, I don't think *this* SCOTUS would say anyone has standing for that, regardless of whether the purpose is authorized. Taken together with impoundments, this would break everything. The president is claiming the power to not spend money he doesn't want to and now also to spend money where it's not allowed. And SCOTUS might say no one has standing to stop him. That would make him an appropriations king. They were already impounding funds and treating Congressionally appropriated funding levels like mere suggestions. And now while we're busy trying to negotiate funding levels, they assert the ability to spend the money Congress provided however they want, further blowing everything up. By an entire parsec, the Trump administration has undertaken the most illegal set of budget actions in history. This is why we desperately need guardrails to restrain and go after budget malfeasance from the White House.