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:
- The Appropriations Clause of the constitution says money cannot be drawn from the Treasury except by appropriations made by law.
- OPM v. Richmond says that payments from the Treasury have to be authorized by statute.
- 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).
You do realize that the Administration does have lawyers that draft the Executive Orders. Maybe you don’t.
Maybe use the contrived standing by republican states to sue Biden for student loan forigvenszz
@Other Just Saying: you typed that without thinking “I really sound like an idiot but will send it anyway”? Most of the orange pervert does gets shot down by courts that follow the law and not who appointed them.
Welcome to TACO Thursday! Our Dear Leader is a complete moron. Let’s see, I haven”t heard the idiot claim the war in Iran is “a Democrat Hoax”. Hmm, why is that?
Here we have the cultists supporting open borders, no ID’s, and defund the police. This is the world they want. Crazy.
The TSA should function normally. To do that, TSA screeners should be paid. The air transportation system is a vital national and economic function. Let it function.
Anything else is a bunch of lawyer games.
I feel sorry for him and believe he is unwell. His focus is lost on governance and only moved by the poll numbers. Scary.
NEED A GOOD COPY EDITOR?
“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.”
IN THE CLAUSE, “AND WHOMEVER…” IT SHOULD BE “WHOEVER,” BC THE WHO IN THIS SUBORDINATE CLAUSE IS THE SUBJECT OF THE CLAUSE, NOT THE OBJECT.
FEW PEOPLE UNDERSTAND HOW TO USE “WHO” IN ITS MANY CASES, SO I ADVISE JUST TO WRITE “WHO.” USING “WHOM” IN EVERYDAY WRITING IS PRETENTIOUS ENOUGH, BUT 100-FOLD WORSE WHEN USED IMPROPERLY.
“ There’s not really clear legal authority here.” Like that matters at all to this administration
what a BS headline
@Ray. “Don’t wrestle with pigs. You both get filthy and the pig likes it.”
Look everybody! I fixed the shitshow, that I unnecessarily caused! I’m so great!
Now let’s mint a gold coin, with ME on it!
Gary just wants these people to suffer as long as possible because he hates them.
Paying them is the right thing to do. Ending the madness at the airports is also the right thing to do.
Letting screeners go unpaid and walk off the job creates immediate, real-world consequences for millions of travelers. Ensuring these agents are paid keeps the system functioning and reduces the strain we’re seeing. If you’re so ideologically rigid that you’d rather see the system collapse in real time than support a temporary fix because “bad orange man did it,” that says more about your priorities and, let’s face it, your complete derangement than anything else.
I’m pretty sure this is a Major security risk alone…
@ Mike – Letting screeners go unpaid and walk off the job creates immediate, real-world consequences for tens of thousands of TSA agents. The travelers will be able to pay their rent and feed their families just fine.
Causing a problem then trying to fix it doesn’t make you a deserving worthy or decent.
@CHRIS:
Gary just reported facts; he did not advocate for any particular action.
@Derek:
Thank you for your patience to write that up. I was going to post simply, “*whoever”
@Chris – paying them is the right thing to do, I’m just pointing out that until there’s a congressional appropriation it may not be a legal thing to do.
What a country to be proud of! So glad I renounced my citizenship years ago and left for Europe, for good.
Pay them, but… (he’ll probably TACO); thankfully, Congress seems to want its recess… If we’re talking law, 4th Amendment should already protect all people from warrantless searches of their homes, but… “when there’s a shutdown, it means the president is weak.”
I assume Dementia-In-Chief wants to have them paid with the new money being printed with his signature on them.
HIlarious that anti-Trumpers of the SV use SFO with zero wait times. SFO is secured by private contractors. Nothing to see here: timely move along to your gate.
Pay them and then give a nice bonus for those that showed up to work and didn’t call out sick.
The title of your post “Trump Says He’ll Use An Emergency Order To Pay TSA Screeners — After Letting Airport Security Lines Explode” shows your bias.
Most will argue it is the Democrats that “let the airport security lines explode” by changing demands once Republicans agreed to their original demands. Democrats are finally realizing they are on the wrong side of this shutdown and are trying to find a way to gracefully find a way out from their missteps. Funding DHS, much like requiring IDs to vote, are popular with the majority of Americans and only the radical left are against it.
@Love to Fly — 220 days until the midterms. If you think “most” blame the Democrats, let’s see what happens… (Please, do under-estimate how fed-up everyone is with the way things are going… ‘great’ again… psh.)
Fact: the Senate Democrats voted 7 times to deny funding for DHS, including TSA.
No amount of historical revisionism will change that reality. I am stunned at the intellectual dishonesty of travel bloggers, commenters, the media, and left wing ideologues who are still attempting to gaslight the American public by claiming this is the fault of the White House.
How many Congressional roll call votes or C-SPAN videos do you need to see before you concede the truth?? At a time of war, with threats of terrorism to the homeland at an all-time high, the Democrats purposely voted NO on funding for DHS, the Coast, Guard, TSA, ICE, and more.
6 Democrats let the lines explode because they expected 14 Republicans to change their opinion. It seems to me it’s much easier for 6 people to concede than 14. I’m sure there are good reasons why it took this long.
The political naivete of many here amazes me. It is clear to any observer why the Dems, who want fundamental changes in ICE, wanted DHS funding separate. Then, as the effects unfolded, they could offer to fund TSA separately, knowing if Reps agreed, they could then just (effectively) veto any further DHS funding until Reps caved. Reps knew that was the ploy, denied separate TSA funding, and hoped the travel disruptions would force the Dems to fund DHS with more favorable (to their viewpoint) terms. Both parties are happy in a way for travel disruptions, believing they can blame the other and force them to better terms. They’re all (absent a few here or there) just playing modern American politics. Want to blame someone or group? No list exluding Trump, Rep leaders, or Dems leaders is complete.
1) I’m glad they are getting paid.
2) It is probably illegal to do so.
3) It is probably political suicide for Congress to sue to stop this process. They won’t do it.
4) Anybody else with standing will take a long time to figure out and have the issue work its way through the courts, by which time it is probably moot.
5) This funding mechanism will eventually get litigated because Trump will try to use it for anything else he wants (i.e. declare a national emergency and boost ICE funding). At that point, members of Congress will litigate it.
I put the over/under on #5 happening at 2 weeks.
Executive order to pay TSA has been signed. Could you please find the order, read it, explain what it does, and whether you think it is legal, in-between, or illegal. Thanks.
I am traveling next week, so I really want to know.
House Republicans are holding it up now… so much for the ‘blame the Democrats’ talking-point…
@1990 Yeah, Republicans are funny that way. They refuse to be blackmailed by Congressional Democrats who want zero ICE enforcement for criminal illegal aliens who commit rape, murder, drug trafficking, and domestic violence against American citizens. Thanks for showing us who you stand for, 1990. It ain’t the American people.