The risks of letting Trump become the military paymaster
Trump will demand their loyalty in return
“Do you know what’s a good lesson of history? You’re screwed if you can’t pay the army.”– Adrian Tchaikovsky, The Children of Time
President Trump’s personalist presidency is driven by a simple logic: protect friends and punish enemies. The shutdown encapsulates this worldview. Trump is cancelling spending in blue states and cities and firing employees in “Democrat programs.”
Even more worrying: he is using the shutdown to woo our military and other armed agents, with the goal of turning them into loyal friends as he pursues “the enemy from within.”
Trump says that he can determine if the armed forces get paid or not during a shutdown. This is an unprecedented threat to American democracy in two ways.
First, Trump is dramatically escalating his Congressional power grab. He claims the right not just to impound funds Congress has appropriated, but also to spend funds for purposes Congress has not appropriated. Second, Trump is upending civil-military relations to encourage troops and other armed agents of the state view him as their personal patron.
It might seem that Trump is simply using commonsense to deal with the shutdown fallout. After all, who could oppose the troops being paid? It is precisely because this position has such broad support that Trump’s actions are both unnecessary and troubling. Republican House leadership refuse to allow a vote on the bipartisan “Pay Our Troops Act” that would ensure uniformed military continue to receive a paycheck, consistent with previous shutdowns. Democrats have mostly opposed similar legislation in the Senate. The manufactured crisis empowers Trump by allowing him to play the role of problem-solver. Congress should take this risk off the table even as they resolve other disputes driving the shutdown.
It’s not just the military. Even as their civilian counterparts are not receiving a paycheck during the shutdown, FBI agents and parts of the Department of Homeland Security, such as Immigrations and Customs Enforcement, Coast Guard, Customs and Border Patrol, Secret Service, and Air Marshals will get their paychecks on time.
A good rule of thumb to understand which federal employees will be paid during the shutdown is whether their job involves carrying a gun. No gun, no paycheck.
Russ Vought spelled out the “pay the troops, pay law enforcement” logic.
The constitutional threat
To justify repurposing money to pay the troops, Trump points to Article 2 of the constitution, which is shorthand for the unitary executive theory that the President holds King-like powers. Accepting this authoritarian cheat-code fundamentally upends the dynamics upon which the American constitution is based, according to Congressional expert Matt Glassman:
This is very bad, and completely out of step with the most basic legislative-executive power dynamics that have been settled since the aftermath of the English Civil War. …This is straight-up the executive saying “I have the authority to pay the troops because I’m the Commander-in-Chief and I am going to pay the troops. This makes impoundment look quaint. I have written previously about how Trump and, especially, 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. For the legislature to say “you can spend $8B for the next two years on weapons research” and for the executive to take that money and proudly spend it on soldiers instead is a pure attack on Congress, and consequently, on the rule of law. It reduces Congress to a single, negative power: the right to not appropriate any money. Anything they do grant the executive might end up being spent on anything. Welcome to England, circa 1615.
Welcome to England, circa 1615. If you don’t like, too bad. The option of migrating to the colonies to start a new country, one opposed to the ethos of a leader with King-like powers, is not open to you.
Is this legal?
Well, what is legal and what is happening are no longer the same thing in American government. Indeed, the distance between them seems to be growing every day, becoming cavernous. Many of the things we thought were impossible have become routine (impoundments, closing agencies, firing employees for ideological reasons).
Add spending funds for purposes Congress never appropriated to the list, and assume that some future Supreme Court will bless it, either with a technical dodge (damage done, can’t be undone) or a wholesale embrace that amounts to a constitutional amendment (actually, Presidents can spend what they want). The chasm between the law and practice might close again in the future, but the America that emerges will be very different from the country we knew.
The question of narrow legality and the spirit of the constitution also seem to be increasingly separate categories. Understanding the legal justifications of the administration is difficult, because they fail to present them publicly in a way that administrative law experts can dissect. Based on reporting, the DHS payments appear to be based on a $10 billion slush fund given to DHS to help compensate other parts of DHS and government to join Trump’s immigration enforcement omniforce. Does this include the FBI? I have no idea. The bad faith nature of this practice is underlined by the fact that the Trump administration is cutting off SNAP payments, even though it has billions in reserve it could legally use.
The DOD payments involve raiding unspent DOD funds, and transferring it to pay accounts. No doubt DOD has plenty of pockets of reserves, but there are legal issues with doing this, such as transferring money from one fiscal year to a fiscal year that expired. This makes it different from other parts of the federal government where there are clear pockets of unexpended appropriations that can be repurposed for salary.
Bobby Kogan, a former Biden Office of Management and Budget official describes Trump paying the troops as “by far the most illegal budgetary action he’s taken as POTUS.” The OMB General Counsel, Mark Paoletta, says it is all perfectly fine, offering an explanation that could be charitably characterized as confusing. From the New York Times:
Mark Paoletta, the general counsel of the White House budget office, said that funds approved by lawmakers for one purpose could not “ordinarily” be used to backfill another, completely different account. But Mr. Paoletta argued that the accounts to pay military service members “no longer exist as a matter of law” now that federal funding has lapsed.
If someone can explains how accounts to pay the military no longer exist, which makes it fine to pay the military even though the accounts that don’t exist have no money in them — well, apply for a job of government lawyer for the Trump administration, I guess.
Normally, we defer to the lawyers in government to explain the technical nuances of the law that us civilians do not understand. Then we remember that Trump has stacked these positions with loyalists whose job is to give Trump’s actions the veneer of legality, rather than explain to him what is illegal. After all, Mark Paoletta worked with Russ Vought to claim that the withholding of military aid to Ukraine, the basis of Trump’s first impeachment, was perfectly legal. They claim it still. Never mind that the Government Accountability Office, who have the official job on ruling on what is an impoundment, disagreed.
Once the precedent of not paying the troops according to the rules is created, bad things follow. Now, friends of Trump are personally contributing to their paychecks. This is also likely a violation of the Antideficiency Act, but illegal in a different way. The money is not a large portion of military costs, which runs to $600 billion in total annual compensation, but underlines the message to troops that Trump and his buddies are personally paying them. In this case, it is an heir to the Mellon fortune, who is a big Trump donor, and a supporter of RFK Jr.’s anti-vax causes.
Why “pay the troops, pay law enforcement” creates democratic risks
We are not just in England, 1615. We are in any period in history where political leaders used pay to establish the loyalty of their troops. The Sack of Rome in 1527 was the result of unpaid troops deciding to pay themselves by looting the poorly defended city. Previous Roman Empire power struggles were resolved by which pretender was willing to pay — or at least promise to pay — the troops the greatest premium for their loyalty, e.g. The Year of Four Emperors in 69 AD.
The basic point is that military loyalty, via payments, has been both a historical means of regime consolidation and occasional societal collapse. Unpredictability around military pay should be seen as one more flashing siren of democratic risk that Americans never used to have to think about. The message that Trump is sending to the armed forces is “whatever instability comes, I have your back. You will be taken care of.”
What does Trump want in return? What does he want from anyone? Loyalty.
American troops are not going to sack our cities. But they might become more willing to enthusiastically implement Trump’s more questionable policies, such as aggressively supporting immigrant sweeps, occupying cities where they are not welcome by the public or elected officials, shutting down protests of the administration that become labeled as insurrections, policing the events of his political opponents or election sites in areas that lean toward his political opponents. The mere presence of the military at sites of civil dissent and democratic participation sends a powerful message to the public: keep quiet, stay home, shut up.
This “pay the troops, pay law enforcement” ethos matches Trump’s vision of American government: major expansions when it comes to immigration enforcement and the military; cuts for everything else. Trump recently fired Department of Education officials who ensure disability laws are being followed, public health officials at Centers for Disease Control, Environmental Protection Agency officials overseeing grants, and IRS employees. None of these, or the massive cuts in funds to blue states, are required by the shutdown. The shutdown merely provides an opportunity for rewarding friends and punishing enemies.
Trump’s decision to protect the military and FBI might seem puzzling. After all, Trump officials have pursued unprecedented purges of both organizations. But these actions are consistent with a would-be authoritarian employing a mixture of carrots and sticks to gain control over national security forces, and mirrors his weaponization of the Department of Justice.
Historically, military and FBI leadership feature a relatively high degree of professionalism and a reluctance to engage in overtly partisan displays of loyalty. Their relative importance and independence make them a barrier to Trump’s consolidation of power. For example, Department of Defense leaders opposed Trump’s plans to use the military on protestors or his efforts to stay in power after losing the 2020 election. He wants to ensure he never faces such opposition again.
Trump is combining the military and FBI into a broader omniforce engaged in displays of dominance and control in Democratic cities. Almost half of FBI field agents are being redeployed to support immigration enforcement. He has deployed Marines to Los Angeles and the National Guard to multiple Democratic cities to support ICE.
You know the situation is bad when the national media is publishing handy guides to recognize which armed forces might be in your neighborhood. Trump is ensuring that all parts of the omniforce will be paid during the shutdown.
Trump recently warned military leaders about “a war from within” before urging them to “use some of these dangerous cities as training grounds for our military.” The military leaders were reportedly aghast, and see their boss, Pete Hegseth as untrustworthy and out of his depth. Here are comments from military leaders interviewed by the right-wing Washington Times describing Hegseth and his address to them in the most unflattering terms:
“It was a massive waste of time…If he ever had us, he lost us”
“embarrassing” and theatrical to a degree that “is below our institution”
“Across the services, we are bleeding talent, talented generals and flag officers, for what appears to be the opposite of a meritocracy. There are people being held back from promotions, or being fired, or removed for sometimes unknown reasons, often for favoritism, or just simple relationships.”
“Leadershipwise in the building, I can tell you the level of chaos is unprecedented. Even the teams that I was on, people were fired overnight for no given reason”
As Trump pushes out leaders who balk at illegal actions, he also seeks to align the rank-and-file. On the day of mass protests about Trump’s actions, Vice President Vance passed on a message to Marines from Trump:
He wanted me to tell each and every single one of you that he’s proud of you, that he loves you, and that despite the Schumer shutdown, he is going to do everything he can to make sure you get paid exactly as you deserve.
Close ties between political leaders and the military are a feature of strongmen regimes. Stable democracies demand accountability to the constitution and public rather than a single person. They do so by establishing widely accepted constraints on the use of the armed forces, and by making their payments a routine state responsibility. By contrast, Trump wants to undo the constraints and be seen as their benefactor.
It makes little sense to punish any federal employee for the inability of Democrats and Republicans to pass a budget. As long as the shutdown continues, the obvious solution is for Congress to reassert its control over the power of the purse and remove the associated democratic threats. Some Democratic leadership are holding out for a bill that would pay all federal employees. That would be my preference, since it avoids creating an obvious inequality between uniformed and civilian employees, all of whom are facing economic hardship. Democratic leadership also assume that paying the troops reduces pressure to get a shutdown deal done.
But the risks of allowing Trump to become seen as the personal benefactor of the troops outweighs those concerns. Don Kettl and Phil Joyce, two professors of public administration not prone to hyperbole had argued that
When the government shutdown ends, Donald Trump will have succeeded in staging the single biggest expansion of presidential power in American history because of the single largest shift in the constitutional balance of powers ever.
Democrats and Republicans in Congress have a shared institutional interest in finding ways to constrain Trump and Vought from using the shutdown to refashion the government by making them irrelevant. In practical terms, this means that Democratic leadership should support legislation like the Pay Our Troops Act. Every day it refuses to do so makes Congress less relevant, and Trump’s efforts to sway the armed forces more likely to succeed.