Trump’s move to pay troops amid shutdown sets dangerous precedent, experts warn | US military

By ordering U.S. military personnel to be paid even if the government is shut down, Donald Trump is catering to a politically untouchable constituency caught in a congressional deadlock over federal spending.

But experts who spoke to the Guardian warn that it almost certainly did so illegally and, if left unchecked, bodes ill for Congress’s constitutional authority to control government spending. Some fear this could pave the way for the president to unilaterally fund other contentious decisions in the future, such as the deployment of the military on U.S. soil.

“I’m with people who believe there’s no legal justification for moving money around this way,” said Phil Wallach, a senior fellow at the American Enterprise Institute, a right-wing group that focuses on the separation of powers in the U.S. government.

“There’s no mandate from Congress to pay the troops in this new fiscal year. So this goes pretty far legally and encourages everybody to do something about it. Because, of course, basically nobody thinks paying the troops is so bad.”

The federal government shut down in early October after Democrats and Republicans in Congress failed to agree on legislation to extend funding through the end of September. Nearly 700,000 federal workers have been furloughed, while hundreds of thousands continue to work but are not getting paid.

During previous government shutdowns, soldiers were paid because Congress approved defense department spending or passed bills specifically to guarantee their pay, said Bobby Kogan, a former White House executive office and budget official who now works at the Center for American Progress, a liberal think tank.

This time, Congress took neither of these actions; but lawmakers failed to pass federal workers’ pay legislation through Congress as recently as this week.

Last week, Trump acted unilaterally by repurposing $8 billion in Defense Department funding for research and development to pay the military in mid-October. Kogan called the decision “super duper illegal” under federal law.

“If you try to spend the money you have for the wrong purpose, you are in trouble. If you try to spend your money for a purpose that is not in your control, then you are in trouble,” he said.

On Thursday, Trump said an unnamed “friend” contributed $130 million to pay service members during the shutdown. Sean Parnell, the Pentagon’s chief spokesman, confirmed that the funds were accepted “under general gift acceptance authority.” “The donation was made on the condition that it offset the cost of salaries and benefits for Service members.”

Christopher Mirasola, a law professor at the University of Houston, said officials who followed Trump’s orders to use the funds for other purposes could theoretically be sued for violating a law called the Anti-Inadequacy Act. But such investigations have never happened in the past, and he said in an interview that it was hard to believe that Trump’s justice department, or even another president, would pursue these cases.

“I’m not sure if a future administration would have the desire at that point to bring in career government officials who would face years of harassment at the hands of the administration for going along with something, even if they knew it was illegal,” Mirasola said.

Kogan said Trump’s foes who try to sue on this issue — such as Democratic lawmakers or civil society groups — may have difficulty proving they were harmed by paying soldiers, a necessary component of filing a lawsuit.

“You’re in a difficult position here before this supreme court, at least under the Trump administration,” he said.

Experts cast Trump’s move to pay the troops as his latest attempt to shift budget power from Congress to the executive branch, but they differed on how important it was in the long run. Since taking office, he has used a variety of methods to halt government spending in areas his administration opposes, including the controversial cancellation of foreign aid funds.

“I think the crisis will start to feel more acute if we start to see the president moving money around to do very politically controversial things,” Wallach said, noting that paying the U.S. armed forces is “something that basically everybody agrees on.”

Wallach said the ball is now in the court of the Republican-controlled Congress to make clear that they are the ones making the decisions on spending.

“I certainly don’t think the GOP takeovers want the White House to take over. I’m absolutely certain they’re uncomfortable with that dynamic and want to get away from it as quickly as possible,” he said.

Kogan warned that Trump was launching an attack on Congress’s appropriations process, where lawmakers, often working in a bipartisan manner, outline how much the government will spend and on what.

“If the president can completely ignore everything, spend money for existence, he can empty the accounts and use them as he pleases, right?” said Kogan. “Like, what are we doing there? That makes you the allowance king.”

Such decisions could paradoxically make it harder to find a deal to reopen the government, undermining confidence in Congress that any legislative deal Democrats sign will be honored by Trump.

“The whole point of the budget deal is to figure out how to allocate your limited resources. We’re going to figure out what we want to prioritize in government, and if the president has full and unilateral authority to ignore every part of this deal, how can you make appropriations? How can you make a funding deal?” Kogan.

Mirasola linked the pay decision to Trump’s deployment of national guard troops to cities across the country, including Washington D.C., Chicago and Portland. He thinks most federal laws governing how the military is used on U.S. soil are outdated, and the main hurdle Trump faces is the ability to get Congress to pay for the troops.

“If my theory that appropriations are the ultimate cap on these domestic military deployments is correct, then I will take action in this manner to distract Congress from the appropriations process [are] “This is really an attack on one of the most important changes to the president’s authority to use the military in the United States,” he said.