When Congress fails to pass appropriations, much of the government is forced to shut down because federal agencies and their employees are prohibited from spending money in excess of, or in advance of, available appropriations. The Antideficiency Act protects Congress’ constitutional power of the purse with civil and criminal penalties for willful violations. The Trump Administration, however, continues to assert budgetary powers, including during the current shutdown, in ways that call into question the legality of such moves.
The White House recently ordered the Secretary of Defense to use any remaining available funds across budgets in fiscal year 2026 to pay military personnel despite the lapse in appropriations. Members of the military are considered “essential” employees, meaning they are required to work during a shutdown but are not paid until funding is passed by Congress, at least until now.
The order specifies the use of such money — originally provided for other purposes — is restricted to expenditures with “a reasonable, logical relationship” to military pay. That is a striking departure from longstanding practice, in which spending is limited to what the law explicitly permits, and appears to violate budget-related laws including the purpose statute (31 USC 1301 (a)) and the Antideficiency Act. The administration points to a constitutional imperative, asserting Commander-in-Chief authority as part of the justification.
The move signals an expansive view of executive branch powers with the president claiming the latitude to reassign funds from various budget accounts to sustain operations deemed essential. In practical terms, a “use available funds” order serves as a precedent for selective executive budgeting across government, particularly during shutdowns.
Congress’ ability to exert its own constitutional power-of-the-purse duties is substantially weakened if the president can simply reassign funds to administration priority areas. If Congress refuses to challenge these moves or lacks the capacity to do so mid-shutdown, budget authority will reside less with statutes and more with executive discretion. The shift may seem subtle now, particularly for a worthwhile purpose like paying the military, but it could signal a fundamental rebalancing of budgetary power across the branches for years to come.
Shutdowns As A Lever For Executive Choice
By treating statutory appropriations language as malleable while also invoking threats to military readiness and other national security concerns, the president stretches the bounds of executive authority. That potentially opens a path for line-item budgeting, where funding is no longer controlled through appropriations language but instead is driven by executive reassignments guided by White House policy judgments.
Once that precedent is set, what stops the president from applying it to other priorities? If the logic is accepted in the defense domain, it could be extended to areas such as homeland security, border enforcement, or other domestic spending programs. Any agency or program strongly supported by a president becomes a candidate for ad hoc executive reprioritization — without congressional involvement — while disfavored activities face unilateral defunding.
The Shield Of Operational Ambiguity
Just as FY 2025’s murky spending close created ambiguity, the current shutdown gambit exacerbates opacity. Because the executive branch now claims authority to repurpose funds, Congress and external auditors may find it nearly impossible to trace which pots of money and budgetary accounts were used to accommodate these policy shifts.
Such actions accelerate the fiscal uncertainties driven by an ongoing budget execution approach by the White House involving pocket rescissions and withholding funds for policy reasons. These maneuvers raise the prospect of the president being able to fund priorities using internal account reallocation, perhaps even incentivizing shutdowns as a means to enable stealth policy decisions. That approach could transform budgeting into an executive branch-dominated field.
Eroding Congressional Power
During the shutdown, White House policy officials are operating out of traditional legal bounds by functioning as gatekeepers, deciding which activities are funded, mothballed, or dismantled. Ending the shutdown will not necessarily reverse those decisions, particularly given the most likely near-term solution is a continuing resolution that would lack the spending specificity included in regular appropriations bills and accompanying report guidance.
The power of the purse, enshrined in the Constitution, exists as a critical check against executive overreach. If Congress tolerates this shift toward executive branch dominance in budgeting, it cedes one of its core responsibilities and jeopardizes the separation of powers that preserves democratic accountability and limits unchecked presidential control over spending.
Devising a way to pay the military during the current shutdown is another indication the Trump administration is seeking to expand its dominance on budget matters. It appears part of a broader effort to use constitutional, administrative, and fiscal emergency doctrines to centralize power. While shutdowns reflect the country’s deepening fiscal dysfunction, this one points to a compelling need for a full reconsideration of the process used by the government to decide how and where to collect and spend taxpayer dollars.