Imagine our troops, the very people who defend our nation, facing the unthinkable: missing their paychecks. That's precisely what almost happened during a recent government shutdown, and the solution cooked up by the Defense Department is raising some serious eyebrows, and potentially breaking the law.
President Trump directed Defense Secretary Pete Hegseth to find a way to pay the troops on October 15th, as the shutdown threatened to stretch into its third week. For the first time in U.S. history, service members braced themselves for a missed paycheck. Congress had failed to pass a temporary funding measure, and the "Pay Our Troops Act" – legislation that had ensured troop pay during previous shutdowns – stalled. But here's where it gets controversial...
The Pentagon announced it would tap into roughly $8 billion from its research, development, testing, and evaluation (RDT&E) funds from the previous fiscal year to cover those mid-month paychecks. Think of it like raiding the company's innovation budget to cover payroll. It sounds good on the surface, but is it legal?
This move certainly eased the pressure on House Speaker Mike Johnson, who was facing increasing demands to bring the "Pay Our Troops Act of 2026" to a vote. This act would guarantee pay for service members, DoD civilians, Coast Guard personnel, and contractors during government shutdowns. Johnson initially dismissed this option, arguing that the House had already done its part by passing a continuing resolution.
While preventing a missed payday for our troops seems like a clear win, the decision to reallocate $8 billion from research and development raises significant legal questions. Is the administration overstepping its authority? And this is the part most people miss...
One former defense official put it bluntly: "It is not apparent to me how this is legal now... I think that there’s an obvious question here: if in this shutdown you can pay the troops using unobligated funds, which the Department of Defense has every day of every year— why wasn’t this done 12 years ago during the last shutdown? Why did Congress have to enact the Pay Our Military Act last time? But now, it’s supposedly not necessary." In other words, if this was a legitimate option, why hasn't it been used before? Why did Congress feel the need to specifically legislate troop pay during shutdowns in the past?
To understand the potential legal issues, it's important to know that Congress gives the Defense Department specific, limited powers to use funds for purposes other than what Congress originally approved. These powers allow the department to transfer money (move it from one account to another) or reprogram it (shift it within the same account) under certain conditions. When a transfer happens, the Defense Secretary is required to notify Congress.
The National Defense Authorization Act and the Defense Appropriations Act typically include General Transfer Authority provisions, which set a limit on how much the Defense Department can move. The 2025 continuing resolution actually increased the DoD's authority to move money between accounts from $6 billion to $8 billion, but only for the 2025 fiscal year, and only for urgent priorities. So, if the DoD is already using the full $8 billion, they won't have any transfer authority left. What's the plan if the shutdown continues?
One former House Appropriations Committee staffer highlighted a broader concern: "We’re in a fundamentally different dynamic where [the Office of Management and Budget] has disregarded a lot of [Government Accountability Office’s] opinions generally about the spending power... we’re in a period where the executive branch is testing the limits of the executive power, particularly relative to the power of the purse. This is just another example of that. I’m not surprised this is happening at all, and it sets a precedent for it to happen again and again on both sides." This suggests a potential power struggle between the executive and legislative branches over control of federal spending.
Rich Brady, the CEO of the Society of Defense Financial Management, added another layer of complexity. He pointed out that research and development funds are a two-year appropriation, unlike operations and maintenance accounts, which are funded annually. This means that R&D funds appropriated in 2025 are available for obligation in both 2025 and 2026, giving the DoD some flexibility. The core question, however, remains: how much can they legally transfer and use for military pay? It's unlikely to be the full $8 billion they're talking about.
The legal risks are significant. The Defense Department's action could violate the Anti-deficiency Act, a law designed to prevent federal agencies from spending money without congressional approval. This Act is the legal framework Congress uses to control federal spending. A violation could carry criminal penalties, although it's rare for such cases to be prosecuted.
It's possible that the administration is betting that no one will dare object to paying the troops, regardless of the legality of the method. Internal legal guidance, such as an opinion from the OMB or the Defense Department's General Counsel, could offer legal protection to officials involved. However, these documents are rarely shared with Congress, raising concerns about transparency.
Beyond potential Anti-deficiency Act violations, the department could face criticism for violating congressional intent or exceeding its statutory authority. Congress could address this in the next appropriations cycle. But here's where it gets controversial...
As Brady pointed out, there may not be any external agency able to hold the administration accountable for spending the funds contrary to Congress's wishes. While everyone agrees that military personnel need to be paid, this method could be seen as circumventing congressional intent, especially if the DoD lacks the full transfer authority.
Johnson has already pushed back against Democrats questioning the legality of the plan, daring them to challenge the administration's decision in court. "If the Democrats want to go to court and challenge troops being paid, bring it," he stated.
It's worth noting that neither the House nor Senate Appropriations committees responded to requests for comment on whether they were notified about the transfer of funds. This lack of communication further fuels the controversy.
Ultimately, transferring $8 billion only provides a temporary solution – enough to cover one pay period. The administration's plan for a longer shutdown remains unclear. Tapping funds from the reconciliation package is another option, but any transfers would still be subject to the same $8 billion cap.
So, what do you think? Is paying the troops, regardless of the method, justifiable? Or is it crucial to uphold the legal framework and congressional intent, even if it means potentially delaying paychecks? Does the end justify the means in this case, or are we setting a dangerous precedent for future administrations? Share your thoughts in the comments below.
