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With the second navy payday of the present authorities shutdown approaching Nov. 1, Congress is struggling to go laws that would pay troops and doubtlessly civilian federal staff.
The newest try, which might have paid solely these federal employees deemed “important” throughout the shutdown, failed in a 54-45 vote Oct. 23. Notably, nonetheless, the Republican-sponsored invoice did achieve help from three Democrats, prompting congressional leaders on either side of the aisle to vow to proceed to hunt a compromise on shutdown pay within the coming days.
If that effort additionally fails, the Pentagon plans to make use of a brand new directive from President Donald Trump to pay troops utilizing unspent non-personnel appropriations. The legality of that coverage could possibly be challenged, nonetheless.
On Oct. 11, days earlier than the navy was poised to overlook its mid-month payday, the President introduced by way of social media that he had instructed Protection Secretary Pete Hegseth to make use of “all accessible funds” inside the Protection Division to pay troops throughout the shutdown. The Pentagon recognized $8 billion that had been appropriated in fiscal 2025 for analysis, growth, take a look at, and analysis applications to cowl the expense.
Throughout previous shutdowns, lawmakers handed laws to pay troops and generally designated important civilian employees. However a “Pay our Navy Act” launched within the Home in mid-September by no means made it to a vote this session; Speaker Mike Johnson (R-La.) has not reconvened the Home since Sept. 19.
On Oct. 15, Trump introduced he had directed Hegseth to make use of “any funds appropriated by the Congress that stay accessible for expenditure” to pay navy members throughout the shutdown.
Protection consultants and former Pentagon officers mentioned reprogramming funds with out congressional approval breaks with previous norms and will doubtlessly be challenged on authorized grounds. However additionally they mentioned the shortage of public pushback from lawmakers and the highest cowl from Trump’s memo means the division may do it once more.
One former high-ranking official estimated the Pentagon has upwards of $200 billion in unused analysis and growth and procurement funds it may draw from—plus one other $150 billion from the Massive Beatiful Invoice Act handed this summer season. “I consider they’re setting this as much as be a nearly bottomless pit via which they will do that on the finish of the month paycheck and the center of November paycheck and so long as they want,” the previous official advised Air & Area Forces Journal, which granted anonymity due to the sensitivity of the problem.
A Authorized Grey Space
Whereas paying members of the navy throughout a authorities shutdown just isn’t controversial, the Pentagon’s strategies are. Circumventing Congress and its energy of the purse may violate the Anti-Deficiency Act, which dictates the situations beneath which federal businesses can repurpose funding appropriated by Congress. The underlying premise of the regulation is that appropriations are supplied for a selected objective, for an outlined period of time and for a selected quantity.
Wealthy Brady, CEO of the nonprofit Society of Protection Monetary Administration and a former Protection Division funds officer, advised Air & Area Forces Journal that on the very least the legality of the division’s actions on this case is “murky.”
Two open questions, Brady mentioned, are whether or not DOD supplied correct notification to lawmakers and whether or not the switch exceeded the ceiling, which Congress units yearly.
Sometimes, when the division desires to switch funds, the Pentagon comptroller sends the Home and Senate appropriations and armed companies committees an in depth accounting of the applications cash is being drawn from and the place it’s going as an alternative. Whereas Congress just isn’t required to approve these plans, the Pentagon sometimes waits for lawmakers’ to log out earlier than shifting funds. The Pentagon didn’t reply to questions from Air & Area Forces Journal about funding sources, however in keeping with a number of information organizations reporting on the matter, DOD didn’t notify lawmakers of its plans and has not supplied particulars on which R&D funds have gotten bill-payers for navy pay.
One interpretation, Brady mentioned, is that Trump’s public announcement of the switch constituted authorized notification, and that his presidential memo directing the funding shift supplied the required authorized justification.
As for switch limits, Congress annually grants a common switch authority via its appropriations and authorization payments permitting the Pentagon to shift funds to new accounts. This features a cap on how a lot may be transferred. From fiscal 2022 to 2024, that cap was set at $6 billion. Within the fiscal 2025 persevering with decision, which expired Sept. 30, it was elevated to $8 billion.
With out appropriations or authorization payments in place for fiscal 2026, the Pentagon’s authorized authority to switch funds is unclear. Whereas the funds being transferred to pay troops have been appropriated in fiscal 2025, the legal guidelines detailing common switch authority set within the FY-25 persevering with decision say that the $8 billion in transfers “stay accessible till Sept. 30, 2025,” so any transfers past that date will not be allowed, Brady mentioned.
“With out query, we’re working in a grey space right here,” he mentioned. “What’s taking place is with out precedent.”
Difficult the legality of paying the troops, nonetheless, is politically dangerous. No politician desires to be seen depriving the navy of its pay, the previous official mentioned.
Lengthy-Time period Penalties
Unilateral motion by one department of presidency towards one other is prone to have long-term repercussions, Brady mentioned. He famous that the choice throughout the first Trump administration to divert $3.6 billion from DOD’s funds to fund border wall development between the U.S. and Mexico brought about lasting harm with the Senate. Whereas DOD was capable of recuperate among the funds, the transfer brought about lasting harm to relations with Congress.
“A variety of the problems round belief stem from the switch of funds for the border wall in that interval,” he mentioned. “[There were] second- and third-order penalties of these actions.”
In response to the perceived government overreach, Congress may select to rein within the Pentagon’s reprogramming authorities in future appropriations or in an upcoming persevering with decision, the previous official mentioned. Within the case of the border wall, lawmakers handed laws barring funding transfers between businesses. Sooner or later, they may enact extra restrictions.
“They may offer you zero reprogramming authority, and you’d simply be caught with having to dwell with what you requested for within the funds a yr in the past because the world modifications,” one insider mentioned. “You don’t wish to cross them.”
Then again, ought to lawmakers choose to not reply, the previous official mentioned, they’re primarily accepting the administration’s choice, emboldening the White Home’s Workplace of Administration and Funds to strive comparable techniques with different federal businesses sooner or later. Precedents are lasting, the official mentioned.
“When you do that as soon as, you would possibly strive it once more on one thing else which you can’t get the votes on for no matter motive,” the previous official mentioned. “You’ve got a precedent now.”
Audio of this text is delivered to you by the Air & Area Forces Affiliation, honoring and supporting our Airmen, Guardians, and their households. Discover out extra at afa.org