Trump Orders TSA Paid Without Congress — Screeners Get Paychecks Monday

The Senate passed a funding bill for the Department of Homeland Security last night that would have provided pay to TSA screeners. It did not include funding for ICE, but that’s already funded by prior legislation. Republican leaders in the House, however, declined to go along and schedule a vote on the legislation – proposing instead a two-month extension of DHS funding including ICE, which may or may not even have the votes in the House, and may not have a path to consideration in the Senate.

So the President went ahead with his direction to pay TSA employees even without an appropriation. The Department of Homeland Security says TSA employees will see paychecks on Monday.

I hereby direct the Secretary of Homeland Security, in coordination with the Director of the Office of Management and Budget, to use funds that have a reasonable and logical nexus to TSA operations to provide TSA employees with the compensation and benefits that would have accrued to them if not for the Democrat-led DHS shutdown, consistent with applicable law, including 31 U.S.C. 1301(a).

It turns out that the President is not declaring a legal emergency of any kind, just saying that the situation is an emergency.

• Trump directs the Department of Homeland Security and Office of Management and Budget to use funds with a “reasonable and logical nexus to TSA operations,” cites 31 U.S.C. § 1301(a), says any later account adjustments must be “authorized by law,” and closes with the standard caveat that the memorandum is implemented “subject to the availability of appropriations.”

• There’s no claim to presidential power to spend – just suggesting there is already a pot of money legally available for TSa to use and he’s saying they should use it. If that’s the case, it was simply a choice not to use it earlier.

• Citing 31 U.S.C. 1301(a) doesn’t actually give the President any flexibility. It says appropriations may be used only for the thing Congress made it for.

The Anti-Deficiency Act bars still bars agencies from making or authorizing expenditures exceeding the amount available in an appropriation or before an appropriation is made unless authorized by law. Excepted employees who keep working get paid after the lapse in funding ends.

The only way to pay them is to classify TSA employees as funded by some other already-appropriated account. That was already true and this memo doesn’t change anything.

The memo directs the use of funds with a “reasonable and logical nexus” and that’s not an accident, it is the legal test of whether funds can be charged to an appropriations account. It’s not the same thing as saying any DHS money related to TSA.

They can’t use money for border support, ICE removals, immigration enforcement, or vetting aliens that has been appropriated, or even money given to Customs and Border Protection for “screening persons entering or exiting the United States” even though both are ‘screening.’

Finally, the memo suggests “adjust[ing] applicable funding accounts” after regular TSA funding is restored (borrow from one pot now, return it later). The Department of Interior tried that during the 2019 government shutdown in Trump’s first term, but that was deemed to violate the Anti-Deficiency Act.

There’s probably no available money that’s legal to use for this. They may also designate money to use for this, but there are very few entities with standing to sue.

• The House or Senate itself could sue, but those are both controlled by Republicans.
  
• You’d have to identify a specific harmed individual or company – likely someone that would have benefited from the money if it hadn’t been misspent – in order to have a specific enough harm for standing. And by the time that happens, the money will have been spent.

Ultimately no one is going to complain about screeners being paid for their work. So whether or not paying them is legal becomes ultimately a moot point.