Trump Says He’ll Use An Emergency Order To Pay TSA Screeners — After Letting Airport Security Lines Explode

President Trump says he’ll sign an “emergency order” directing the Department of Homeland Security to pay TSA screeners immediately during the partial government shutdown. The President appears to be declaring Spring Break an emergency.

About 500 TSA officers have quit since the shutdown began, more than 11% were absent nationwide on Wednesday, and absentee rates have even climbed above 50% at some airports like Houston Intercontinental and above 30% at New York JFK, Baltimore, New Orleans, and Atlanta. If the shutdown continues, this has been expected to worsen, and the Transportation Secretary has warned of closing some smaller airports due to staffing challenges.

• Only the Department of Homeland Security is unfunded. Some functions, though, have funding and law enforcement officer pay continues.
  
• Democrats have demanded immigration enforcement reforms such as not detaining U.S. citizens in exchange for funding.
  
• As in the November shutdown travelers have intentionally been used as pressure to get a deal.

It may be that accepting Elon Musk’s offer to pay TSA screeners himself would have been more legal.

So can the President actually declare an emergency and fund TSA? And why can he do this now, when it didn’t make sense before (and the Administration’s position was that Democrats had to fund DHS to solve airport security)?

• 31 U.S.C. § 1342 allows emergency life and property functions to continue during a lapse
  
• TSA sick calls are now compromising airport screening, and that creates security risk
  
• While TSA security taxes have been used to fund the government broadly, their statutory authorization says the fee is for screening salaries, benefits, overtime, and related costs.
  
• If DHS has funds in an account that’s authorized, making those funds available for screening salaries becomes plausible.

The challenge here is that:

1. The Appropriations Clause of the constitution says money cannot be drawn from the Treasury except by appropriations made by law.
   
2. OPM v. Richmond says that payments from the Treasury have to be authorized by statute.
   
3. The Anti-Deficiency Act bars agencies from obligating money in excess of or before an appropriation, unless expressly authorized by law.

Excepted workers keep working during the shutdown, and are paid after the lapse ends. That’s how the shutdown works by law, and nobody has really disputed this.

And the TSA security tax does not really work because while ‘fees support screening salaries’ the law also clearly says that expenditure of the fees must be provided for in advance by an appropriations act or used in accordance for an airport security capital grant fund (not a TSA payroll account).

If it’s ‘just spend money from another fund’ my read is that general transfer authority is limited and generally requires 30 days’ notice.

TSA is essential. That’s why screeners are still working (with deferred pay). There’s not really clear legal authority here. But who can sue?

In order to sue you need standing and whomever has standing has to be willing to sue. Going to court to stop TSA screeners from getting paid won’t be popular. Sometimes Congress itself can get standing, but individual members don’t have standing and both Houses of Congress are controlled by Republicans.

Standing will come down to whomever loses the money that gets diverted could sue. General taxpayers can’t. Passengers and airlines are helped, not hurt. So this is probably legally a stretch, but as I wrote from the beginning, no one is likely to sue to stop it (or be able to get past the standing issue if they do).