Presidential Appropriations

David Super

      President Trump has rejected any constraints on the violent, lawless, reckless behavior of Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) agents even after they killed several U.S. citizens.  He also has repeatedly rejected a bipartisan Senate compromise that would have funded all of the Department of Homeland Security (DHS) apart from those two agencies.  This compromise would not have interfered with the continued operations of ICE and, at least in the near term, of CBP:  both agencies received a huge influx of funds under the One Big Beautiful Bill Act (OBBBA) President Trump pushed through Congress last summer.

     Without a DHS appropriation, most DHS employees, including those at the Transportation Security Administration (TSA), the Federal Emergency Management Agency (FEMA), and the Coast Guard, have been working without pay.  TSA officers have been resigning and calling in sick, leading to huge lines at airports and numerous missed flights.  Other DHS employees have been seething in relative obscurity.  This post analyzes the legality, or lack thereof, of the actions President Trump has taken in response to this impasse. 

     When the previous temporary appropriation for DHS became unavailable on February 14, President Trump kept ICE agents working and continued to pay them with funds from section 100052 of OBBBA.  This section provides $29.85 billion to ICE for an extensive list of purposes including “Hiring and Training” and “Performance, Retention and Signing Bonuses”.  Although not a clean match with paying the regular salaries of on-going ICE employees, most people likely would regard that as sufficient authority for these payments.  Section 1000052 likely provided sufficient funds to support ICE for the remainder of this fiscal year.

     President Trump also kept CBP agents working and paid them under section 100051 of OBBBA.  Section 1000051 provides DHS $2.055 billion for several purposes including the “[h]iring and training of additional U.S. Customs and Border Protection agents, and the necessary support staff, to carry out immigration enforcement activities.”  President Biden’s final budget proposal estimated that CBP would spend about $16 billion in a year so, even combined with 4.5 months of funding under continuing resolutions, section 1000051 funds alone likely would not suffice to fund CBP through the end of the fiscal year in September. 

     Finally, President Trump required many other DHS employees, including TSA officers and much of the Coast Guard, to continue working during the partial shutdown that began February 14.  This likely was appropriate under section 1342 of the Anti-Deficiency Act, which makes an exception to its general prohibition on the federal government accepting unpaid work where necessary to address “emergencies involving the safety of human life or the protection of property.”  He did not pay them, however, because section 1341 of the Act, which prohibits spending federal funds without a statutory appropriation, contains no “emergency” exception. 

     President Trump was unable to continue paying these non-ICE, non-CBP employees under sections 1000051 or 1000052 because the “Purpose Act” states “Appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.”  

     The Government Accountability Office’s (GAO’s) Red Book of Appropriations Law, on which the Supreme Court has relied, characterizes the “Purpose Act”:  as “Simple, concise, and direct, Congress originally enacted this statute in 1809 and it is one of the cornerstones of congressional control over the federal purse.”  It quotes a 19^th Century Comptroller of the Treasury:  “It is difficult to see how a legislative prohibition could be expressed in stronger terms. The law is plain, and any disbursing officer disregards it at his peril.”  That “peril” is the Anti-Deficiency Act’s criminal penalties.  GAO notes that “[i]f a proposed use of funds is inconsistent with the statutory language, the expenditure is improper, even if it would result in substantial savings or other benefits to the government” and “transfer between appropriations is prohibited without specific statutory authority, even where reimbursement is contemplated.”

     As public irritation over long airport security lines mounted and Democrats continued to refuse to appropriate more no-strings money for ICE and CBP, President Trump repeatedly instructed congressional Republicans to reject Democratic bills that would have funded the rest of DHS and let ICE and CBP continue to spend OBBBA funds.  When Senate Republicans disobeyed and agreed to legislation that would do essentially that, House Speaker Mike Johnson prevented the Senate bill from coming up for a vote.  President Trump then ordered DHS to pay its workers notwithstanding the lack of an appropriation. 

     On March 27, President Trump issued a memorandum to the Office of Management and Budget (OMB) and DHS ordering them to pay TSA employees.  He stated that “[a]s President of the United States, I have determined that these circumstances constitute an emergency situation compromising the Nation’s security” but cited no statute making such a determination legally relevant.  In addition, he did not specify what appropriation, if any, should be drawn down to provide these payments.  Instead, he simply instructed OMB and DHS to make these payments “consistent with applicable law, including 31 U.S.C. 1301(a)”, the “Purpose Act”.  No available appropriation has a statutory purpose that would include paying TSA officers.  A week later he issued second a memorandum to OMB and DHS directing that “each and every employee of DHS” be paid.  This memorandum again contained an emergency declaration and a citation to the “Purpose Act” and again failed to specify any source of funds for the payments he was ordering. 

     With the Administration not advancing a theory of why this action might be legal, outside analysts have discussed section 90007 of OBBBA.  This section states:

In addition to amounts otherwise available, there are appropriated to the Secretary of Homeland Security for fiscal year 2025, out of any money in the Treasury not otherwise appropriated, $10,000,000,000, to remain available until September 30, 2029, for reimbursement of costs incurred in undertaking activities in support of the Department of Homeland Security’s mission to safeguard the borders of the United States.

These funds are clearly available for CBP agents at the nation’s perimeter.  One could plausibly argue that CBP officers at international airports are indirectly responsible for safeguarding our borders in that anyone to whom they refuse entry will quickly be sent back across those borders.  The Administration contends that ICE and CBP enforcement actions in the country’s interior somehow are part of border security; that position flies in the face of the ordinary usage of language and a long history of distinguishing between border and interior enforcement actions. 

     Even if one accepts the Administration’s unilateral reconceptualization of border enforcement, however, that at most helps fund CBP and the Coast Guard.  As the President’s own memo notes, TSA works only in “our domestic travel system”, not “to safeguard the borders of the United States.” 

     The President directs OMB and DHS “to use funds that have a reasonable and logical nexus to TSA operations” for TSA pay and “to use funds that have a reasonable and logical nexus to the functions of DHS” to pay DHS employees.  This appears to reference the first of the three steps GAO applies to determine the propriety of an expenditure.  This step allows spending an appropriation only on activities necessary to accomplishing the statutory purpose of the appropriation.  That analysis is impossible, of course, without first establishing the appropriation’s purpose.  And for this, GAO cautions “The actual language of the appropriation act is always of paramount importance in determining the purpose of an appropriation.”  (The Supreme Court’s Textualists have nothing on the GAO.)

     The claim that paying DHS employees has “a reasonable and logical nexus” begs the question:  “to what?”  If the Administration had an appropriation whose purpose met this test, surely it would have disclosed it in the presidential memoranda or in response to questions thereafter.  Indeed, if the Administration thought paying DHS employees was permissible under existing law, surely it would have done so in February. 

     Moreover, even if the Administration could satisfy the first part of GAO’s three-part test, it likely would fail the third, which prohibits spending general appropriations on an activity Congress has addressed with a more specific appropriation.  “It is a well-settled rule that even where an expenditure may be reasonably related to a general appropriation, it may not be paid out of that appropriation where the expenditure falls specifically within the scope of another appropriation.”  Congress has addressed compensation for DHS employees in several specific appropriations, all of which barred spending funds after February 14.  The Administration could not lawfully evade that limitation even if it had a broader appropriation whose language plausibly permitted the expenditure. 

     This is not a case of necessity.  President Trump does not care for the terms of the deal Congress is offering.  He can certainly hold out in the hopes of getting something better.  But disregarding the Constitution to avoid bargaining with a coordinate branch of government is no more legitimate for him than it would have been for any of his many predecessors who disliked terms that Congress was offering.   

     President Trump is developing a habit of spending funds in defiance of the Appropriations Clause, the Anti-Deficiency Act, the Purpose Act, and other statutes.  His action to pay servicemembers during last fall’s partial government shutdown was wholly lawless.  His practice of keeping donations from affluent benefactors, and the proceeds from sales of Venezuelan oil he has seized, in accounts he controls outside the U.S. Treasury violates the Miscellaneous Receipts Act.  That Act requires funds to be promptly deposited in the Treasury – where they become subject to the Appropriations Clause. 

     This is important.  Although it may strike some as rather technical when compared with usurping Congress’s power to declare wars in a disastrous war of choice against Iran, Congress’s Power of the Purse is foundational to most other checks on presidential power.  The Court’s unwillingness to enforce various constitutional limitations on presidential power has been defended by arguing that Congress may defund actions of which it disapproves.  If the President may appropriate funds for whatever actions he desires without regard to statutory limits, that fallback constraint no longer exists.  Should Congress ever muster the will to cut off funding for President Trump’s war against Iran or other foreign adventures (Greenland?  Cuba?), we may expect that the President will simply declare a national emergency and order that funds continue to flow based on some wild “nexus” theory, perhaps again not even bothering to state which unrelated appropriation he chose to pilfer. 

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