Mike Johnson's Institutional Betrayal
The DHS shutdown is morphing into a constitutional crisis
Who holds the power of the purse? Congress or the President? Mike Johnson has a clear answer: it’s Trump. Our constitutional scheme of governance is less important than enforcing our new personalist regime. And if Trump needs to break a law or two to try to patch up the fallout, so be it.
Lets see where we are with the shutdown.
Trump urged the Senate to keep the Department of Homeland Security closed, refusing to offer concessions on Immigrations and Customs Enforcement or Customs and Border Protection, and demanding the Senate pass his mass disenfranchisement bill, the SAVE Act.
Amidst a growing airport crisis, Trump declared he will pay Transportation Security Administration employees on Thursday, March 26. He does not specify any legal means to do so in a memo released the next day, as a record 12% of TSA agents called in sick. He later claimed the power to pay all DHS agents affected by the shutdown.
At 2.20 am Friday morning, the Senate passed a bill that would fund all parts of DHS, except for ICE and Border Protection. Most people breathe a sigh of relief. Airport crisis appears to be over, ICE/CBP issues to be resolved later. Senate goes into recess.
The Senate bill would pass handily in the House…except Mike Johnson does not give it a vote. Late Friday night, the House passes its own bill with Trump’s backing to fund all of DHS until late May, no compromises on immigration. The Senate won’t pass this bill, which would require Democratic agreement. Similar proposals have been rejected for weeks.
The House also goes into recess. Meaning no-one is around to actually sort out the differences. The shutdown appears set to continue for a couple more weeks at least.
Now remember, ICE and CBP don’t actually need new money. They are funded for multiple years because of the One Big Beautiful Bill Act. Their employees are being paid during the shutdown. This is really about whether a) they will face some nominal accountability for their interactions with citizens and noncitizens, specifically on whether ICE can wear masks and be allowed warrantless entry into people’s home and b) whether other parts of DHS will be funded, with TSA being the obvious pain point.
So here is where the institutional betrayal comes in. Mike Johnson had a pretty clear choice:
A) Reclaim the power of the purse for Congress by passing broadly popular legislation.
B) Allow the President not only to dictate appropriations, but also to engage in a potentially illegal scheme to pay TSA employees to deal with public anger.
Johnson chose B.
We have been here before. During the last major shutdown, Trump claimed that he could decide that members of the military would be paid. There was no major uproar or legal appeal — after all, who is against paying the troops? — but it set a precedent. DHS is sitting on a mountain of money. So Trump could make the same dubious claim that he just needs to move a bit of it around, and the shutdown is over!
Except, that is not how it works. Either the shutdown — a lapse in appropriations means the executive must lay down its tools — is real, or its not. Either the legislative branch determines appropriations, or it doesn’t. The idea that it does is central to our constitutional scheme of government. During the last shutdown, Matt Glassman wrote:
Trump and, especially, [OMB Director Russ] Vought are proposing theories of executive spending that would essentially undo late 17th century English settlements between King and parliament, and upend the 1787 constitutional dynamic. But the ability to not spend money appropriated by law is nothing compared to the ability to ignore purpose restrictions on money. The most bedrock feature of appropriations—indeed, the reason the word appropriation exists—is because the English parliament won the ability to condition their grants of supply to the King on three things: duration, amount, and purpose.
In effect, Trump is making the case that he can both a) impound funds he does not want to spend, and b) spend funds that have not been appropriated. Both of these are incredibly dangerous threats to checks and balances. For example, we have credible evidence that the Trump administration uses partisanship to selectively direct money away from blue states when it comes to contracts, infrastructure spending, safety net spending because of fraud allegations, and even emergency funding requests.
All of which to say, Trump keeps reminding us of why its a bad idea for a single person to control how public money is spent, a point that the framers were especially aware of when they designed the American constitution.
In this specific case, its not that the President cannot pay federal employees during a shutdown, but he has to have a clear appropriations source. He has that for ICE and CBP, no dispute. He does not for TSA.
The Trump memo has not explained what that appropriations source is. It just says “to use funds that have a reasonable and logical nexus to TSA operations to provide TSA employees with the compensation and benefits.” And so, some lawyers at DHS and OMB were probably asked, “well, what is the most plausible appropriations source that we could claim here?” And these are lawyers who were selected for their loyalty to Trump, and so they will come up with something, or write a couple of paragraphs about Article II powers and not get into the details.
The memo raises some uncomfortable questions for Trump, beyond the obvious one of “where is the money coming from?” Another is “if you had this power, why are you waiting until now to pay the TSA employees?” Are we in a country where the King only pays his employees after they walk off the job, are living in cars, or become dependent on food banks?
For the rest of us, the DHS dispute raises bigger questions about whether certain checks and balances still exist. I’m not sure anyone wants to hear this constitutional nit-picking. We all want our airports to be functional again. And Trump redirecting DHS previously-appropriated money to non-ICE and CBP activities might be considered a win for Democrats.
But it extends the DOD shutdown precedent, and that is dangerous. If a President can point to any unspent funds for an agency, he can reappropriate it for what purposes he wants. We are increasingly operating a form of government where a) we routinely have government shutdowns, and b) the President can selectively end shutdowns for parts of the government he likes, while maintaining them for the part he dislikes. That is is a system of government where Congress has little functional power. As Glassman noted this “reduces Congress to a single, negative power: the right to not appropriate any money.”
The Georgetown University Congressional legal scholar Josh Chafetz wrote:
It's not just that unilaterally paying TSA agents is illegal. It's that Trump has now repeatedly undermined the core of the congressional power of the purse. He's not spending money that has been appropriated by law (impoundments) and he's spending money that has not been appropriated.
These actions aren't just illegal, although they are that. They aren't just unconstitutional, although they are that. They are anti-constitutional: they strike at the core of one of the principles that allows our entire constitutional order to function.
From the Founding through the present day, the power of the purse has been understood as one of Congress's most potent tools against the executive: the executive can't do anything without money, and he can't spend money without Congress. If Trump is able to get away with ignoring that, with arrogating the entire power of the purse to himself, then Congress has pretty much no way of checking him.
Also worth noting that, in Plutarch's telling--the telling that the Founding generation would have known intimately--it was Caesar's raiding of the treasury and threatening of the tribune Mettellus, who tried to defend it, that was one of the clearest signs that he intended to become a dictator.
And this is where we get back of Johnson. In a myriad of ways, Johnson has completely failed in his job of protecting the institution he is tasked with leading. There is little meaningful oversight coming from Congress, and Johnson encourages Trump’s grabbing of legislative power.
In this case:
Trump created a problem via poor management of government services, which triggered a shutdown which worsened other government services.
Trump offers a likely-illegal and constitutionally suspect solution that further weakens Congress.
The Senate same up with a solution that would have solved the problem via constitutional means, while reducing the scope of the conflict.
Mike Johnson signs on for Trump’s solution, rejecting the popular and constitutional option.
Shutdowns are dumb. No other rich country assumes that if politicians are at a budget impasse, public employees and the public should be punished via a loss of paychecks and services respectively. Indeed, such budget impasses typically trigger an election in other countries, giving politicians a real incentive to pass budgets on time.
Shutdowns are not a core constitutional requirement. A government lawyer invented this problem in 1980 through an interpretation of the Antideficiency Act of 1870. Some have argued that another government lawyer could simply offer a different interpretation that shutdowns are not required. I’m not a constitutional lawyer, and it clearly would be preferable for Congress to amend the Antideficiency Act than to leave it to the executive branch. But anything seems better for a functional and constitutional government than the emerging dynamic: shutdowns are routine, and also an opportunity for the President to amass and selectively use legislative power.