When Congress failed to approve funding for the Department of Homeland Security for the remainder of this fiscal year in February, almost all of its employees began to work without pay.
That situation changed, on April 3, when President Donald Trump issued a memorandum ordering the DHS secretary and director of the Office of Management and Budget to “use funds that have a reasonable and logical nexus to the functions of DHS” to pay its employees and issue back pay.
The Trump administration shifted money to avoid the political embarrassment that would be caused by the collapse of airport security screening through the actions of disgruntled agents and the disruption to air travel that would ensue. But the shift was considered legally dubious.
The money the White House is tapping into to pay TSA airport screeners and Coast Guard members was approved by Congress, but not through regular appropriations.
DHS is using $10 billion dollars set aside in last year’s massive budget reconciliation bill – the One Big Beautiful Bill Act (OBBBA) – to cover payroll for more than 100,000 employees, the same bill that reserved $75 billion in multiyear operating funds for Immigration and Customs Enforcement.
Government watchdog groups and other appropriations experts argue that tapping into that $10 billion runs afoul of the Antideficiency Act, which prohibits federal employees from moving funds from a purpose given in law to a purpose not given for the money in law.
The law gives teeth to Congress’s “power of the purse” under the Constitution. Former Senate Budget Committee and Office of Management and Budget staffer Bobby Kogan thought using this section of the law for other purposes was a clear ADA violation.
The Trump Administration made a similar violation during the government shutdown last October by using research and development funds for military personnel pay.
The trouble with the ADA is that it relies on agency heads to report violations to the President and the Comptroller General at the Government Accountability Office (GAO), an arm of Congress currently controlled by the Republican majorities of the House and Senate. In this case, the president directed the violation and Republicans in Congress do not want GAO to challenge it.
Although violating the Antideficiency Act carries with it criminal penalties, no one has ever been prosecuted under it. Unlike the current situation, most violations have been by mistake.
Legal or not, the OBBA funds will run dry at the end of this week based on the rate at which DHS is spending it down.
Accessing that money to pay DHS employees may not be legal. The funds are made available in Section 90007 of the OBBBA until September 2029, but specifically for supporting DHS’s work “to safeguard the borders of the United States.”
TSA agents working security lines in U.S. airports for domestic flights are not safeguarding the border, for example. Similarly for FEMA and the Cybersecurity and Infrastructure Security Agency (CISA), parts of DHS substantially focused on domestic security.