Members of Congress say they’re happy military troops are getting paid during the shutdown — but not necessarily that President Donald Trump is claiming vast power over the federal spending process to do it.
In a sweeping order last week, Trump gave both the Pentagon and the White House budget office the green light to use “any funds” left over for the current fiscal year to bankroll paychecks for active-duty servicemembers, which were due to be withheld last Wednesday amid the government funding standoff.
The move took the onus off lawmakers to vote on standalone legislation to pay troops during the funding lapse — something House and Senate GOP leadership had resisted, fearing it would reduce pressure on Democrats to vote for the Republican plan to reopen the government as the minority party demands bipartisan negotiations on health care.
The Senate is scheduled to consider legislation this week that would allow members of the military and other federal workers to receive pay while the government remains shuttered. It’s far from certain it will attract the necessary 60 votes to advance or would ever be brought to the floor in the House, which has been in recess since passage of the GOP-backed stopgap more than a month ago.
Against this backdrop, lawmakers who oppose Trump’s troop funding gambit have been careful to couch their criticism of the method with support for the end result.
“Look, I want the troops to be paid,” said Hawaii Sen. Brian Schatz, a senior appropriator and likely the Senate’s next Democratic whip. “But, as usual, they find the most illegal way to do everything.”
But Republicans are also among the many lawmakers highly skeptical about the legality of Trump’s actions. The president invoked his authority as commander in chief to claim missed paychecks would pose an “unacceptable threat to military readiness” — but the law requires the president to seek approval from Congress before moving around money, and there are many constraints to what can be done even with lawmakers’ passive consent.
“While it’s a desired outcome, there’s a process that’s required — by Constitution and by law — for Congress to be not only consulted but engaged,” Sen. Jerry Moran (R-Kansas), a senior member of the Senate Appropriations Committee, said in a brief interview last week.
And the issue isn’t going away. According to two White House officials not authorized to speak publicly, Trump will continue to use funding for military paychecks during the shutdown, if Congress doesn’t pass a government funding bill before the next pay date at month’s end.
At the same time, Trump administration officials have not provided top congressional appropriators with details about how much cash the White House believes is available for use, nor have they submitted requests to Capitol Hill to reprogram any money.
“There’s a way we take care of this. It’s called appropriations. It’s called reprogramming. And I don’t think that process is being respected,” said Alaska Sen. Lisa Murkowski, another leading Republican appropriator and frequent Trump critic.
The Trump administration privately told lawmakers that it tapped $6.5 billion from a pot of about $10 billion in unspent military research and development funding to pay troops ahead of the Oct. 15 paycheck date.
“The appropriations committee in general believes that it should get more information and that we should receive a list of canceled work” and “contracts,” Senate Appropriations Chair Susan Collins (R-Maine) told reporters last week.
On Friday the White House sent lawmakers a five-page document detailing its argument for why the president has the power to use funding for a different purpose than Congress mandated in law. The bulleted list of talking points cites examples like then-President George Washington tapping military funding in 1794 for the militia to respond to the Whiskey Rebellion.
But administration officials have not relayed how much other money they believe could be used to pay troops when the next paychecks are due on Oct. 31.
The White House is already hunting for any available money to address other funding shortfalls during the shutdown to support politically popular programs. That includes options to pay at least a segment of federal workers, and potentially reopen key loans for struggling farmers amid quiet pressure from Senate GOP Leader John Thune and other farm-state lawmakers, according to two Trump officials and two senior Hill Republicans with direct knowledge of the matter.
White House officials also need to figure out how to manage the dilemma over SNAP, the country’s largest food assistance program that serves 42 million low-income Americans, which will start to run out of funds Nov. 1.
The federal government’s top watchdog, the Government Accountability Office, typically weighs in on the legality of shifting funding during a government shutdown. When Trump was president during the last, lengthy funding lapse that ended in early 2019, GAO concluded that his administration twice violated the law with its funding moves, warning that officials would face fines and up to two years in prison for future violations.
This time around, however, GAO has yet to receive any lawmaker requests to review Trump’s maneuver to pay members of the military — even as the independent oversight agency is working to determine whether the administration has violated the law by firing federal workers during the shutdown.
“GAO has a process it goes through to determine whether we do work and when, which we are working through,” a spokesperson for the office said in a statement.
Meanwhile, not everyone is questioning the legal standing of Trump’s actions.
Sen. Tim Kaine (D-Va.), a member of the Senate Armed Services Committee, said he supported Trump’s move “once the House made it plain that they were unwilling to come back to do a military pay bill.”
He added, “I’m glad they were able to find undesignated dollars within the defense budget they could use. As long as they keep it within defense, I think that they’re on solid ground.”
Republicans also know there’s at least one major deterrent for lawmakers to legally challenge Trump’s maneuvers to send paychecks to military troops: any outspoken critic risks being branded as unpatriotic.
“If the Democrats want to go to court and challenge troops being paid,” Speaker Mike Johnson told reporters last week, “bring it.”
Connor O’Brien and Leo Shane III contributed to this report.
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