If I had to identify the most important moment of Trump’s second term to date, it would be when Secretary of the Treasury Scott Bessent gave unrestricted access to the Treasury’s central payment system to Elon Musk and his DOGE team on January 31. The career Treasury official tasked with overseeing it was also fired for resisting Musk’s takeover. This was probably not the tipping point in the decline of the American republic, but it appears to have greatly hastened the transition from a government of constitutional law to one of personalist rule.
Congress and the president have had good reason to come back to the negotiating table in past government shutdowns. When appropriated funds run out, the executive branch has to largely shutter its operations, furlough most of its employees, and not send out paychecks for those required to work anyway. The month-long shutdown of 2019 ended only when so many unpaid air-traffic controllers called out sick that U.S. airports could barely function.
That isn’t happening this time, and the situation has drifted from the realm of ordinary executive-legislative disputes into a genuine constitutional crisis. Congress’s greatest check on executive power, short of impeachment and removal, is its control over federal spending. Trump’s usurpation of that power over the past ten months has left no ground upon which the two sides can negotiate.
All governments collect taxes and spend money. Under the Constitution, Congress decides both how much is collected in taxes and what the money is spent on. This is colloquially known as the power of the purse, a throwback to the country’s English roots and the struggles over money between English kings and parliaments. It is a core feature of the constitutional separation of powers. (I know this is all basic stuff, but bear with me for a moment.)
The power of the purse is also something of a legal fiction. Congress itself does not actually collect taxes or spend money. That responsibility instead falls to the executive branch. The Internal Revenue Service collects taxes and deposits the in the Treasury’s accounts. The Treasury then distributes that money wherever it is supposed to go—private individuals, federal agencies, the states, and so on.
The Treasury is supposed to listen to Congress when deciding where that money goes. Musk, a South African-born billionaire with little evident understanding of American civics or political culture, had a different idea. He unilaterally blocked large swaths of federal spending under the spurious premise that he was rooting out fraud and waste. Trump and Bessent not only didn’t stop him, they egged him on. Hence the “legal fiction”: It turns out that the power of the purse actually belongs to whoever holds the purse.
Musk is no longer part of the federal government, but his lawless vision remains. Trump has increasingly taken the view that he, not Congress, decides where and how public money is collected and spent. On the revenue side, he began by imposing billions of dollars of tariffs on American businesses and consumers through an almost certainly illegal interpretation of a 1977 law. The Supreme Court is holding oral arguments on the matter in November and will decide its ultimate legality.
On the spending side, the Trump administration began by targeting discretionary programs—those where he does have some legal leeway—before moving on to bigger mandatory targets. Congress passed laws to create the Department of Education, the U.S. Agency for International Development, and the Consumer Financial Protection Bureau, and other federal agencies. Trump and Russell Vought, the director of the White House’s Office of Management and Budget, have demolished those agencies anyway by firing employees and halting most of their operations.
With the congressional spigot formally turned off for the last two weeks, Trump’s power grab over spending is getting worse. Members of the armed forces are supposed to get their next paycheck this week. This would normally incentivize Congress and the president to find a solution to the funding impasse. Instead, Trump has decided to simply pay them anyway. He issued a “national security presidential memorandum” earlier this week to that effect:
Accordingly, as the Commander in Chief of the Armed Forces of the United States under Article 2 of the United States Constitution, I direct the Secretary of War, in coordination with the Director of the Office of Management and Budget, to use for the purpose of pay and allowances any funds appropriated by the Congress that remain available for expenditure in Fiscal Year 2026 to accomplish the scheduled disbursement of military pay and allowances for active duty military personnel, as well as for Reserve component military personnel who have performed active service during the relevant pay period. Funds used for military pay and allowances during the current lapse should be those that the Secretary of War determines are provided for purposes that have a reasonable, logical relationship to the pay and allowances of military personnel, consistent with applicable law, including 31 U.S.C. 1301(a).
The New York Times announced the memo’s publication with the headline “Trump Signs Memo Expanding His Authority to Spend Federal Money.” Here, the paper of record essentially implies that Trump had always possessed some sort of inherent legal authority to spend federal money in the first place. He does not. There is no Article Two power that provides the president the right to redirect congressionally appropriated funds from other programs—in this case, military R&D outlays for the next five years—to soldiers’ paychecks, and it would be anti-constitutional to infer one.
Nor is there statutory authority for Trump to do this. The memorandum says that any funding changes should be made “consistent with applicable law, including 31 U.S.C. 1301(a).” Would you like to know what that provision says? “Appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.” The Trump administration might as well claim the Ten Commandments say “covet thy neighbor’s wife” and hope that no one double-checks the stone tablets.
When we speak of constitutional violations, there are always matters of degree. Some provisions of the Constitution are vague and subject to interpretation. Americans acting in good faith can deliberate about the scope of “interstate commerce” under Congress’s Article One powers, for example, or what counts as an “unreasonable search and seizure” in the Fourth Amendment context.
But while some portions of the Constitution are subject to debate, others are carved in stone. The Constitution is crystal clear that funding the military is Congress’s decision, not the president’s. Article One says that no public money can be spent except “according to law,” and it is Congress’s power to decide whether that money will be spent or not on the military at least every two years.
The two-year limit is not some mere administrative convenience. The Framers recognized, drawing upon their ancestral English experience, the importance of legislative control of military funding to maintain a functional republic. They knew that standing armies were dangerous to republican values, and that English kings had used them to violate the people’s liberties. To allay early Americans’ fears, the Constitutional Convention invested Congress with the power to declare war and set strict limits on how any military forces would be paid.
“The legislature of the United States will be OBLIGED, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents,” Alexander Hamilton wrote in Federalist No. 26. “They are not AT LIBERTY to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence.”
The Framers expected that Americans would elect lawmakers who would zealously guard these powers. Instead, the people of Louisiana’s fourth congressional district sent Mike Johnson to the House of Representatives and the narrow Republican majority elected him as speaker. In that role, he has vocally agreed with almost all of Trump’s unconstitutional acts, shut down the House on his behalf to block a vote on releasing the Epstein files, and refused to seat a duly elected member of Congress who could provide the decisive vote on releasing them.
Johnson appears incapable of fulfilling his constitutional role. He told reporters this week that Trump has “every right” to redistribute congressionally appropriated funds and hoped to derive some cynical political advantage from it. “If the Democrats want to go into court and challenge troops being paid, bring it,” he remarked. (There are no signs of an imminent lawsuit, and it is unclear who has standing to challenge Trump’s maneuver in court.)
Trump even floated the possibility that he would let private citizens directly pay the troops. “I actually have a man who is a very wealthy person, he said, ‘If there is any money necessary, shortfall for the paying of the troops, I will pay it,’ meaning he will pay it,” he reportedly said at an event. While Trump didn’t take the purported offer for now—and it is hard to imagine that any one person could actually afford to do it—even the suggestion is a sign of how far we have drifted from the light of constitutional government.
These lawless efforts to avoid the consequences of the shutdown will likely end up prolonging it. Senate Democrats have no incentive to bargain with Trump on their demands because he has asserted the power to ignore Congress’s will whenever he likes. There’s really no point in negotiating with a party whose default practice is to ignore acts of Congress. Democrats lack the votes for impeachment since they control neither chamber of Congress, and it will be more than a year before the numbers might change. Unless Senate Republicans abolish the filibuster to bypass Democrats’ obstruction, Americans could be stuck in this constitutional crisis for quite a long time.
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