Trump Is Exploiting the Shutdown to Set Up Something Truly Terrifying

Sign up for the Slatest^[1] to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily.

Last week, the Trump administration announced that it would pay 1.3 million active-duty troops and tens of thousands of National Guard members who would otherwise go without pay during the government shutdown. Although Congress has not appropriated these funds, the White House says it can cover military salaries by redirecting billions of dollars that were allocated for other purposes. The decision to reprogram those funds without congressional approval has raised alarms, even among Republican lawmakers^[2], that the administration has exploited this standoff to further usurp congressional power of the purse.

On this week’s Slate Plus bonus episode of Amicus^[3], co-hosts Dahlia Lithwick and Mark Joseph Stern discussed the alarming legal implications of Trump’s latest bid to seize control over federal spending, and the dangerous precedent it sets going forward. A preview of their conversation, below, has been edited and condensed for clarity.

Dahlia Lithwick: There’s this arcane but really important question about how Donald Trump can pay the troops during the shutdown. The consequences downstream are even more important. 

Mark Joseph Stern: This is a weird situation because we all want the troops to be paid and so nobody wants to acknowledge that the way they have been paid is illegal. But it very obviously is illegal. And it’s illegal in a way that I find kind of scary, especially in terms of the precedent it sets. Under a federal statute, the Antideficiency Act, the government cannot spend money that hasn’t been appropriated for that purpose as a general rule. It’s actually a criminal act, under some circumstances, to spend unappropriated money. But the troops were about to miss their first paycheck this past week because of the shutdown. And to prevent that from happening, Donald Trump repurposed^[4] about $8 billion that Congress had appropriated to the Pentagon for research, development, testing, and evaluation. He redistributed that money as paychecks to the troops.

Now, Democrats aren’t really complaining because everybody wants the troops to get paid. But what Trump did is a brazen violation^[5] of the Antideficiency Act^[6], and there is no statute that authorizes it, or that even comes close to authorizing it. All that Trump could say in the memo^[7] justifying this action is that he is drawing on his Article II power as commander in chief. But if that power allows the president to give money to the military that Congress has not appropriated, then we don’t even really need a Congress anymore. There is no real role for Congress. We just have a king who can conjure up whatever money he wants. He can slosh around the bucket, find funds that were meant for something different, then use it to pay the troops, which Trump increasingly views as his troops.

I think that is a dangerous thing, and it’s pretty much undeniable that Trump has just crossed yet another Rubicon. He has already asserted presidential control over taxes through his tariff policy. He has asserted control over the Federal Reserve and interest rates and monetary policy. And now he’s asserting control over appropriations—and not just through pocket rescissions or canceling projects in blue states, which he had already done. Now he is actually asserting a constitutional imperative to spend money in a way that Congress has not approved. When you combine all of those things, it’s hard to see how the separation of powers still exists in this country.

Just to put my Captain Obvious pants on for a minute, the corollary to everything you just said is that he’s also decided he’s going to tell us what the truth is, right? He has decided he’s going to tell us when there is an insurrection, when there’s a rebellion, and what the law is. So, of course, it’s not just that he’s arrogating the piggy bank to himself. He’s also arrogating actual facts to himself, which makes this triply scary. There’s no rule of law for anyone anywhere if he is given this power. Democrats seem to believe that this payment is important, so they’re not going to squawk. But what are you implying about what’s coming down the road?

Imagine Congress appropriates billions of dollars for TSA upgrades. Then, as the 2026 midterms are approaching, Trump says: I don’t think we really need to upgrade the TSA, so I’m just going to use this money to create an election security force. And he spends billions of dollars that Congress set aside for one particular purpose and uses them for an entirely different purpose—sending DHS officers to polling places across the country to promote “election security,” which really means intimidating voters, denying them access to the ballot, and coercing them out of exercising their constitutional rights.

One thing right now that’s keeping Trump from doing that isn’t really the courts—it’s the money. He doesn’t have the money for it. Even with all of the funds that Congress just appropriated to ICE, CBP, and DHS, there is still not a slush fund that Trump can repurpose to create a personal goon squad that goes out and suppresses votes. But he could just fix that problem for himself under the precedent he has now set by seizing the money from elsewhere.

That’s just one hypothetical; I could go on for hours. The point is that I don’t think that this is a good power to give to any president. There is a reason the Constitution assigns Congress control over appropriations. And yes, the Supreme Court has been arrogating this power to Trump by allowing him to undertake these pocket rescissions. But this takes it all a step further and makes it look like Trump can fund his own personal army of thugs who will do whatever he wants. And what he may well want soon enough is mass voter suppression.

It says so much about the difference between you and me that when you think of bottomless slush funds, your brain correctly goes to goon squads that are purportedly conducting election security, whereas all I saw was a big golden toilet Arc de Triomphe over Washington, D.C.^[13]

That too! Why not both?

Sign up for Slate’s evening newsletter.