It’s Good That TSA Workers Are Being Paid, But the Method Is Clearly Illegal

The fact that Transportation Security Administration (TSA) employees are now receiving their pay again is, of course, a good thing. For weeks they had been unfairly forced to work without pay, imposing great hardships on themselves and major inconvenience to the public, because Washington politicians refuse to do their jobs. However, the method of payment is patently illegal.

This inconvenient and somewhat obscure problem has attracted little attention given the popular outcome, but it sets a terrible precedent. If the president can bypass Congress and pay TSA salaries after Congress fails to act on the specific appropriation for this purpose, he can dip into the treasury and spend money directly for a host of other purposes he favors without congressional approval and even in the face of congressional opposition.

By way of background, the appropriation for TSA employee salaries expired on February 14 as part of the current partial government shutdown and remains nonexistent since Congress failed to agree on a carveout to revive it. Notwithstanding this, President Trump ordered the Secretary of Homeland Security in coordination with the Director of the Office of Management and Budget (OMB), to pay TSA employees from funds that have a “reasonable and logical nexus to TSA operations.”^[1]The order consists mainly of a political attack on Democrats.

This order contradicts the express terms of the Constitution (Art. I, § 9, Clause 7), which provides: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”  Where, as here, Congress fails to enact the specific appropriation for a particular object, the President can’t invoke another more general funding source that might arguably have some “nexus” to it. Obviously, doing so would effectively nullify the constitutional prohibition.^[2]See, e.g., here: An agency cannot use an appropriation account having a logical relation to an expense when another appropriation account specifically covers that expense.

The so-called Antideficiency Act (31 U.S.C. § 1341) has been interpreted to permit the president to order essential employees to continue working during an appropriations lapse, receiving backpay after their appropriation is enacted. However, it does not permit such employees to actually be paid during the appropriations lapse. On the contrary, the Act restates the general prohibition against any federal officer or employee making or authorizing an expenditure exceeding the amount available in an appropriation. Indeed, the Act (31 U.S.C. § 1350) makes knowing and willful violations of this prohibition a crime.

Trump is probably oblivious to these legal constraints (or indifferent if he has been briefed on them). On the other hand, OMB Director Russell Vought surely is not. Vought undoubtedly knows that paying the TSA employees here is illegal. This is another all too familiar example of a fringe ideologue and sycophantic Trump enabler violating his oath of office to do Trump’s bidding.

Certainly, congressional leaders and at least senior members of both parties are likewise aware of this illegality. However, they appear willing to cynically ignore it since the end result eliminates one major cause of public outrage justifiably aimed at them for failing to perform their basic obligation to fund these important government services. Ending this significant pain point also eases pressure on them to come to their senses quickly and fulfill their constitutional responsibilities. (Congress is now on a two-week break.)

Once more, it’s great that TSA agents are being paid and airport screening delays are abating. But for anyone paying close attention this comes at a heavy potential cost to the proper functioning of our government whose ramifications remain to be seen.