President Trump has directed the Pentagon to pay service members by utilizing previously appropriated funds during the ongoing government shutdown, seeking to sidestep gridlock in Congress. But is the move legal?
The move takes some pressure off House Speaker Mike Johnson (R-La.), who was facing growing demands to call the House back to vote on Republican-sponsored legislation that would ensure troops are paid during the shutdown.
Some Democrats and policy analysts say the move is likely illegal.
Romina Boccia, the director of budget and entitlement policy at the libertarian Cato Institute, told The Hill on Monday that "technically speaking, Congress can rescind unobligated balances and repurpose them," but "for the administration to repurpose funds unilaterally is likely illegal."
"An unobligated balance does not give the administration the right to use the money as it wishes," Boccia said. "If Congress wants to ensure that America's troops will be paid during the ongoing government shutdown, Congress should pass a bill that authorizes funding to pay the troops."
Trump announced the move on Truth Social after Johnson had teased executive action -- just days before the Oct. 15 deadline when service members were set to start missing paychecks -- writing that his administration has "identified funds to do this, and [Defense Secretary PetevHegseth] will use them to PAY OUR TROOPS."
A Defense official said Saturday that the department identified "approximately $8 billion of unobligated research development testing and evaluation funds (RDTE) from the prior fiscal year that will be used to issue mid-month paychecks to service members" if the government is not reopened by Oct. 15.
Rep. Jim Himes (D-Conn.) was asked Sunday on CBS's "Face the Nation" whether the administration's plan was legal.
"Well, probably not. Again, we just had a little conversation about the White House's understanding of United States law, which is pretty tentative to say the best," he said.
"I think to pay the military during a shutdown would require legislation; the Speaker of the House has taken that off the table," Himes added. "So, I mean, is Donald Trump going to say a bunch of stuff? Yes, he's going to say a bunch of stuff. But I don't see anything moving."
Still, there was little public pushback against the move Monday, and it's unclear if Democrats will try to stop a maneuver to pay military members, regardless of their views on its legality.
Johnson has argued that the standalone military pay bill, which was introduced last month by Rep. Jen Kiggans (R-Va.), would allow Democrats to avoid accountability for their votes opposing the Republican proposal to fund the government at current levels through mid-November.