When The Purse And The Sword Collide
On October 11, Donald Trump posted on Truth Social, “I am using my authority, as Commander in Chief, to direct our Secretary of War, Pete Hegseth, to use all available funds to get our Troops PAID on October 15th. We have identified funds to do this, and Secretary Hegseth will use them to PAY OUR TROOPS,” (Trump Authorizes Military Pay). This is despite the fact that the U.S. government has been shut down since October 1 due to Congress and the President failing to sign an appropriations bill, resulting in the furlough of approximately 750,000 federal workers, and the military and other federal workers serving without pay.
At first hearing, this sounds reassuring: few Americans would object to paying service members who stand ready to defend the nation. Those members are currently authorized to volunteer their services under a provision limited to protecting life or property. 31 U.S.C. § 1342.
But the statement raises profound legal and constitutional questions. What “available funds” does the President mean? Does he possess independent authority to order payments when Congress has not appropriated money? The answers are uncertain in fact, but clear in law: the Constitution assigns control over federal spending to Congress alone.
The power of the purse, as it is commonly called, is granted to the legislative branch in the Constitution. Article I Section 9, says, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” The role of the executive branch in the appropriations process is to request funding and then, after appropriation, execute the will of Congress. Spending money in a way that conflicts with the appropriations process is a violation of the Anti-Deficiency Act (31 U.S.C. § 1341).
Presidents of both parties have occasionally tested the limits of fiscal control, but none has successfully claimed a unilateral power to spend money in defiance of Congress. Doing so would collapse one of the Constitution’s most carefully drawn separations of power: the division between the sword and the purse. The Founders vested control of the military in a single Commander in Chief but control of funding in a representative legislature precisely to prevent any one branch from sustaining military operations—or loyalty—independent of the people’s elected representatives. No clause of the Constitution—Commander in Chief or otherwise—grants the Executive the power to draw money from the Treasury without Congress’s consent.
In moments of crisis, presidents may be tempted to treat constitutional boundaries as procedural inconveniences. Yet the durability of the republic rests on honoring them most when they are inconvenient. Paying soldiers is a moral imperative; paying them lawfully is a constitutional one.
While it is unlikely that this will be investigated as Trump has fired the DoD Inspector General, and Pete Hegseth has limited the acting Inspector General’s authority, members of Congress should be furious that the executive branch is attempting to usurp one of their most important powers and functions. Instead of violating the law, the President should ask the House and Senate to return to work and pass a new Military Pay Act or an FY 26 budget that would provide the appropriation to pay our service members.
For a more detailed legal analysis, you are invited to read further.
The Time and Purpose Tests for Legal Expenditures Under and Appropriation:
All expenditures under an appropriation must meet the two-part test for time and purpose.
Time Test:
Congress appropriates money for a specific period of time. There are three times of funds:
Annual appropriations – These are funds like the money for military pay that must be spent during the fiscal year. Any money not spent by September 30th is returned to the Department of the Treasury and not eligible to be spent by an agency. Military Personnel Funds are annual funds.
Multi-year funds – This is money that can be spent for specific multiple years. Like annual funds it is limited to the specific time period outlined in the statute. Any funding not spent at the end of the time period is also returned to the Treasury.
No year funds – Occasionally, Congress includes language that says, “until expended”. This means that the funds are available until they are spent. One example of this time of fund is the Disaster Fund.
Another type of no year funds is a revolving fund. Most of these funds are Working Capital Funds, which are established by Congress where annual or multi year money can be combined for a specific purpose such as building improvement or IT upgrades that will take multiple years. (GAO Red Book)
Purpose Test:
Each appropriation also has a specific purpose. Funds must be used only for the purpose specified by the appropriation. For example, R&D funds at the DoD must be used strictly for research and development and may not be used for any other purposes without approval from Congress. Most appropriations are not very specific, but reference a specific program. An appropriation does not just cover the specific program but those expenses that are necessary to achieve the goal of the appropriation. The Necessary Expense test is a three-part test that determines if an expense is allowable under the appropriation. The test is:
1. The expenditure must bear a logical relationship to the appropriation sought to be charged. In other words, it must make a direct contribution to carrying out either a specific appropriation or an authorized agency function for which more general appropriations are available.
2. The expenditure must not be prohibited by law.
3. The expenditure must not be otherwise provided for, that is, it must not be an item that falls within the scope of some other appropriation or statutory funding scheme. (GAO Red Book)
Using R&D Money to Pay the Military Violates the Law
On October 11, 2025, a White House spokesman stated that the administration would use R&D funding to pay the military. (US military will use R&D money to pay troops if shutdown persists). R&D funds are multi-year funds, so they are still available to those programs. Under the first two prongs of the Necessary Expense Test an argument can be made to pay military personnel assigned to projects paid for with R&D funds with these funds. However, the use of R&D funds does not meet the third part of the Necessary Expense test, as Military Pay is provided for by a different annual appropriation.
On October 11, 2025, former advisor to House Speaker Michael Johnson, Jason Yaworske, posted on X that DoD could transfer funds using section 8005 of the FY 2024 National Defense Authorization Act. (Yaworske Post) This is a potential option as one of the main purposes of the General Transfer Authority Yaworske mentions is to transfer funds to the Military Personnel Account to pay for military personnel assigned to support functions paid for with other appropriations. However, Section 8005 states, “That a request for multiple reprogramming of funds using authority provided in this section shall be made prior to June 30, 2024”. There is similar language allowing for the transfer of funds in the FY 2025 National Defense Authorization Act. That Act in Section 1001 states, “the Secretary may transfer amounts of authorizations made available to the Department of Defense in this division for fiscal year 2025 between any such authorizations for that fiscal year (or any subdivisions thereof).” As the fiscal year for 2025 ended on September 30, 2025, this provision may not be used to transfer money in October. Congress has yet to pass a FY 26 National Defense Authorization Act.
Even if the General Transfer Authority were still available, it could still not be used to transfer money to the FY 25 Military Personnel Appropriation. The same language in the General Transfer Authority of the National Defense Authorization Acts has a limitation of the use of funds, which requires the transferred funds to take on the same time and purpose as the appropriation to which it is being transferred. Therefore, DoD may not transfer R&D funds that are available in FY 26 to a FY 25 Military Personnel appropriation as the FY 25 Military Personnel appropriation is expired, and any funds transferred to that appropriation would become FY 25 funds, which are no longer available for obligation and would have to be returned to the Treasury.
As the authority for the Department of Defense to transfer money and the FY 25 Military Personnel appropriation which the funds would be transferred to has expired, there is no valid legal authority to use R&D money to cover military personnel expenses. Without the use of the General Transfer Authority, the use of R&D funds would be a direct violation of the Necessary Expense test (as there is another appropriation for military personnel). Therefore, the Administration’s use of R&D funds to pay for military personnel is an expenditure in excess of an appropriation which is a violation of the Anti-Deficiency Act. 31 USC 1341(a)(1), which states:
Except as specified in this subchapter or any other provision of law, an officer or employee of Government or of the District of Columbia government may not—
(A) make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation;
or
(B) involve either government in a contract or obligation for the payment of money before an appropriation is made unless authorized by law.
As such, any payment of military personnel absent an appropriation from Congress is a direct violation of this provision. Officials who violate the Anti-Deficiency Act are reported to Congress by name and are subject to disciplinary action and criminal penalties of a fine of not more than $5000 and/or two years imprisonment.
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