Illegality Follow-up

Trump is illegally planning to pay the troops during the shutdown (free link behind paywall) by illegally moving money around that has not yet been appropriated for fiscal 2026 and has not been approved by Congress.

Ramifications? Again, none. Why? Because a) this is a constitutional issue, and b) the Republican controlled Congress is too chickensh^t to assert and protect their constitutional duties.

Yesterday the Trump administration announced it would pay furloughed troops by using funds Congress appropriated for research, development, testing, and evaluation (RDTE) for fiscal year 2026. Today White House press secretary Karoline Leavitt said Trump had “found a creative solution to keep the troops paid. And rather than congratulate the president for doing that, this unprecedented action to get our troops paid, the Democrats want to sue him for it. They’re saying that it’s illegal.”

Democrats are saying it’s illegal because it is illegal. The Antideficiency Act, a law that has evolved over time since 1870, prohibits the government from spending money that Congress has not appropriated for that purpose, or agreeing to contracts that spend money Congress has not appropriated for that purpose.

This summer, Democratic senators charged Homeland Security Secretary Kristi Noem with triggering the Antideficiency Act by overspending her department’s budget, but Trump’s claim that he can move government money around as he wishes is an even greater threat to the country than Noem’s overspending.

There is more at stake here than a broken law.

Trump’s assumption of power over the government’s purse is a profound attack on the principles on which the Founders justified independence from King George III in 1776. The Founders stood firm on the principle articulated all the way back to the Magna Carta in 1215 that the government could not spend money without consulting those putting up that money by paying taxes.

That principle was at the heart of the American Revolution. The 1773 Tea Act that sparked Sons of Liberty in Boston, Massachusetts, to throw chests of tea into Boston Harbor did not raise the price of tea in the colonies; the law lowered those prices. To pay for the cost of what colonists knew as the French and Indian War, Parliament in 1767 had taxed glass, lead, oil, paint, paper, and tea, but boycotts and protests had forced Parliament to repeal all the taxes except the one on tea. It kept that tax to maintain the principle that it could tax the colonies despite the fact they were unrepresented in that body.

Then, in 1773, Parliament gave a monopoly on colonial tea sales to the foundering British East India Tea Company. That monopoly would have the effect of lowering the price of tea. Lower prices should persuade colonists to buy the tea despite the tax, thus cementing the principle that Parliament could tax the colonies without their consent. But colonists protested the maneuver. In December 1773, the Sons of Liberty held what became known as the Boston Tea Party, ruining newly arrived chests of tea by throwing them into the harbor, thus paving the route to the American Revolution.

When leaders from the former colonies wrote the U.S. Constitution in 1787, they made sure the people retained control over the nation’s finances in order to guarantee that a demagogue could not use tax money to concentrate power in his own hands. They gave the power to write the laws to the legislative branch—the House of Representatives and the Senate—alone, giving the president power only to agree to or veto those measures. Once the laws were enacted, the president’s role was to “take Care that the Laws be faithfully executed.”

To make sure that the power of the purse remained in the hands of the people, the Framers wrote into the Constitution that “[a]ll Bills for raising Revenue shall originate in the House of Representatives.”

Trump’s declaration that he will ignore the laws Congress passed and take it upon himself to spend money as he wishes undermines not just the Antideficiency Act but also the fundamental principle that the American people must have control over their own finances. That Leavitt suggests giving up that principle to pay the troops, which lawmakers agree is imperative but cannot write into law because Speaker Mike Johnson (R-LA) will not recall the House of Representatives, echoes the Tea Act that would have thrown away the principle of having a say in government for cheaper tea.

Since Trump took office, his administration has undermined the principle that Congress controls funding. It had withheld funds Congress appropriated, a practice that violates the 1974 Impoundment Act and the Constitution. The cost of such impoundment became evident on Sunday, when catastrophic flooding hit the village of Kipnuk, Alaska, a disaster Andrew Freedman of CNN notes was exacerbated by the lack of weather data after cuts left a critical shortage in weather balloon coverage in the area.

Earlier this year the administration cancelled a $20 million Biden-era Environmental Protection Agency (EPA) grant awarded to the community to prevent flooding. Maxine Joselow and Lisa Friedman of the New York Times noted that when EPA administrator Lee Zeldin cut grants this year, he boasted that he was eliminating “wasteful [diversity, equity, and inclusion] and Environmental Justice grants.”

Now that the government is shut down, Trump has told reporters that his administration is using the shutdown to take funds Congress appropriated away from Democratic districts. Tony Romm and Lazaro Gamio of the New York Times estimate that the administration has cancelled more than $27.24 billion in funds for Democratic districts and states while cutting $738.7 million from Republican districts and states. Speaker Johnson told reporters he thought such withholding was both lawful and constitutional but did not explain his reasoning.

Today Annie Grayer and Adam Cancryn of CNN reported that not just Democratic representatives but also Republicans are out of the loop of presidential funding cuts, finding out about cuts to their districts through press releases. Even Senator Susan Collins (R-ME), the chair of the Senate Appropriations Committee, said “we are really not consulted.”

Speaker Johnson told CNN that he hasn’t received details about the administration’s offer of $20 billion in public money and another $20 billion in private-sector financing to Argentina to prop up the government of Trump’s right-wing ally Javier Milei before upcoming elections there.