DHS reopens with legally dubious funding

The funding runs out soon anyway. But a bigger question looms for Congress's constitutional powers.

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, however, 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.

Trump 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 it’s legally dubious.

The money the White House is tapping into to pay people like Transportation Safety Administration airport screeners and Coast Guard members was approved by Congress, but not through regular appropriations. DHS is using a pot of $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 multi-year operating funds for Immigration and Customs Enforcement.

Accessing that money to pay DHS employees, however, is legally dubious. 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.

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.

Congress is moving forward to end the DHS funding lapse. The Senate began the process of budget reconciliation on funding for DHS for the remainder of the fiscal year and beyond this week. Because it allows for expedited consideration of spending and revenue bills, reconciliation will allow the Senate to overcome the 60-vote threshold holding back this funding in the regular appropriations process, which Democrats have leveraged for more than two months over their concerns about immigration enforcement agencies within DHS.

As the name implies, budget reconciliation requires the House and Senate to agree on which programs will be funded and at what level. That hasn’t happened yet, as some House Republicans want to fund immigration enforcement at a higher level than the Senate and include other items like funding for the Iran war.

Nevertheless, the unchecked ability of the executive branch to use money appropriated by Congress for other purposes violates the bedrock principle of the separation of the power of the purse from the power of the sword, which dates back to the English Civil War and Glorious Revolution of the 17th century. The Constitution grants Congress the power to determine how federal funds will be spent as a check on the presidency. What we’re experiencing now is a Congress and Executive Branch that does not care to check the President to the harm of the government’s democratic structure.

Using the reconciliation process still undermines congressional power in this case. The framework the Senate approved would extend funding for Immigration and Customs Enforcement and U.S. Customs and Border Protection for more than three years. Regular appropriations bills generally apply only to one fiscal year. They also carry with them language requiring agencies perform certain oversight-related duties or prohibitions on using funds for specific purposes. ICE and CBP will get a blank check through the next Congress, which, if Democrats retake the majorities, will have to live with it.