I’m Glad TSA Is Being Paid. I’m Not Happy How It Was Done.

By Mark Strand

The inability of Congress to complete the budget process is once again on full display. The Department of Homeland Security (DHS) is a 260,000‑person department that handles terrorism, border security, immigration, critical infrastructure, and disaster response through components like TSA, ICE, CBP, FEMA, the Coast Guard, and the Secret Service.

Congress is surrendering its constitutional power of the purse to the President by looking the other way while he pays TSA employees that Congress failed to fund in a regular DHS appropriations bill. The airports are a mess, ICE agents have been repurposed, and now the Administration has found roughly a billion dollars to pay beleaguered TSA employees.

Because fixing airport chaos during Easter week is politically popular, almost no one in Congress is challenging how the President is paying TSA.

Is this constitutional? Technically, probably yes. But it is yet another sign that Congress is failing to exercise its power of the purse as the Framers intended.

Last year’s “One Big Beautiful Bill” tax/domestic package created large DHS‑related pots of money, including a multibillion‑dollar “border support” fund and other loosely drafted accounts for Homeland Security. Those appropriations are still law; they did not lapse with the current annual DHS bill, and they were written with few purpose restrictions and with substantial discretion for the Secretary to decide what counts as “border support” or related security activities.

The White House directive is to draw on those already‑appropriated, still‑available funds and move (transfer or reprogram) money with a “reasonable and logical nexus” to TSA operations so TSA can meet payroll.

Under the federal “purpose statute,” funds must be used only for the purposes for which they were appropriated. The Antideficiency Act, which governs during budget shutdowns, bars obligating in advance of or in excess of appropriations and bars using expired money. If the White House can say with a straight face that “border support” or similar language includes aviation security and TSA screeners, then, in its view, it is not violating those rules; it is simply using a flexible, still‑open appropriation to pay a particular subset of DHS employees.

On paper, that is how the Administration avoids the bright‑line “President appropriated money by Executive Order” problem. The order is cast as an internal management directive: use these existing dollars, in this way, within existing law.

Here’s the problem. When Congress deadlocks, the President uses this flexibility to solve the most politically salient pain points. Congress cannot pass a DHS bill, airports are melting down, and the President steps in and says, “I’ll pay TSA anyway from this other fund.” Because the money technically comes from an existing appropriation, many in Congress are content to look the other way rather than confront the separation‑of‑powers issue, especially when the underlying action—paying TSA—is popular.

Over time, this builds a precedent: big discretionary pots plus executive creativity can backstop congressional failure. The more often presidents use broad funds to effectively circumvent policy disputes over annual appropriations, the more Congress normalizes writing such funds, and the less pressure there is to do the hard work of timely, specific appropriations.

At some point, presidential priorities are being substituted for congressional priorities. The vaguer the text attached to massive appropriations in legislation like the “Big Beautiful Bill,” the greater the opportunity for the executive branch to usurp congressional power. The current TSA order is probably constitutional, but it pushes the edges of purpose and reprogramming doctrine and marks another step in a long trend in which Congress’ own drafting and inaction invite presidents to act as if they had a partial, contingent power of the purse.

One might be tempted to ask, “How does Congress fix this?” Unfortunately, you first have to ask, “Does Congress want to fix this?” Each time Congress allows a president to use broad, previously appropriated money to solve a high‑visibility problem (military pay one year, TSA the next) during a shutdown, it normalizes “selective executive budgeting” under the banner of using “available funds.”

Essentially, budget shutdowns are becoming a mechanism for expanding executive budget discretion at Congress’s expense.

As the Bipartisan Policy Center has pointed out, congressional provisions that allow the Administration to “use available funds” effectively let presidents reorder spending priorities inside the fiscal envelope Congress created, blurring the line between executing appropriations and making new budget choices. Essentially, budget shutdowns are becoming a mechanism for expanding executive budget discretion at Congress’s expense. If presidents can routinely say, “Congress gave me some broad money over here, so I can keep paying what I want over there,” shutdowns become less a check on the executive and more a license to reprioritize inside the appropriation envelope, especially where public sympathy is strong.

Over time, that erodes Madison’s idea of the power of the purse as the House’s “most complete and effectual weapon,” because the executive learns to maneuver around the immediate pain points with creative budget execution. Even if each individual move is technically defensible, the pattern can amount to a de facto reallocation of budget power from Congress to the President, precisely because it tends to occur in contexts—like paying TSA or soldiers—where political incentives all point toward “looking the other way.”

The recent DHS funding lapse and the President’s unilateral directive to pay TSA officers from pre‑existing “pots of money” offer a case study in how shutdown politics and vague appropriations invite executive encroachment on Congress’ power of the purse.

The President did not literally “appropriate” new money; instead, he instructed the Department of Homeland Security to search for broad, previously enacted accounts and reprogram funds that could be given a “reasonable and logical nexus” to TSA operations. That maneuver may be technically defensible under current appropriations law, but it underscores how far we have drifted from Madison’s vision of Congress holding the decisive power over spending.

A little over a year ago, I wrote about how Congress could fix the budget process. You can find that column here. The recent DHS shutdown and the President’s unilateral order to pay TSA officers out of broad, previously enacted funds have exposed how our broken budget process invites executive branch improvisation whenever a crisis becomes politically painful. The five reforms below are not abstractions—they are practical steps Congress can take to prevent future presidents from reshuffling spending priorities every time Washington manufactures a shutdown.

Automatic Continuing Resolutions

Had an automatic CR been in place, TSA employees would not have faced a funding cliff on October 1. The operational and political crisis that justified this reprogramming simply would not have existed. Automatic CRs deprive both parties—and the President—of the ability to use the pain of a shutdown as leverage. They keep agencies operating under prior congressional decisions rather than inviting the Executive Branch to rummage through old accounts to patch budget holes.

Biennial Budgeting

Biennial budgeting would give Congress a longer planning horizon to avoid these eleventh‑hour standoffs. With a two‑year cycle, appropriations and related DHS funding questions could be resolved in a more deliberate way, reducing the temptation to create enormous, loosely drafted funds that can later be stretched to cover whatever crisis is most politically salient. Fewer, more predictable budget cycles make it easier for authorizing and appropriating committees to write specific conditions on how money may—and may not—be repurposed during funding gaps.

Fixing the Authorization Process

Authorizations are where Congress gives instructions to agencies; without current authorizations, the governing law becomes whatever broad phrases appropriators used in the last omnibus, plus whatever the executive can argue fits. The TSA episode is also a story about weak or stale authorizations. When Congress fails to regularly authorize programs, agencies default to broad appropriations language and internal priorities. That vacuum is precisely what allows a President to argue that a “border support” fund enacted years earlier can now be tapped to pay airport screeners during a shutdown. Restoring the authorization process—by reducing spending on unauthorized programs and forcing debate on unauthorized sections of omnibus bills—would mean DHS and TSA operate under current, detailed statutory instructions. Those instructions can and should specify how funds may be used in a lapse, and how far reprogramming may go.

Six‑Year Sunset Cycle

A regular sunset cycle would guarantee that programs like TSA and major DHS security accounts come back before Congress on a predictable schedule. That gives authorizers the chance to narrow purposes, clarify shutdown rules, and explicitly tie or restrict reprogramming authority. It also makes it harder for large, multi‑year “slush funds” to persist indefinitely without renewed scrutiny. If an account is important enough to be used as a backstop in a crisis, it is important enough to be revisited in statute on a fixed timetable.

Changing the Fiscal Year

Finally, aligning the fiscal year with the calendar year would reduce the incentive to stage budget showdowns at the height of campaign season and then rely on last‑minute omnibus bills to keep the lights on. More time on the front end, especially in a biennial framework, would allow Congress to complete DHS authorizations and appropriations through regular order instead of scrambling in late September—when vague language and oversized discretionary pots are most likely to slip through.

They are an answer to the deeper constitutional danger exposed when a President can, under color of existing law, decide which functions continue and which do not during a shutdown.

Taken together, these reforms do more than tidy up process charts. They are an answer to the deeper constitutional danger exposed when a President can, under color of existing law, decide which functions continue and which do not during a shutdown. If Congress wants to prevent future executives from using “available funds” to reshuffle priorities whenever it is popular to do so, the only durable solution is to repair the budget process itself: end shutdown brinkmanship, restore authorizations, enforce sunsets, and give Members the time and structure they need to legislate instead of lurching from crisis to crisis.

The choice before Congress is straightforward: either keep improvising around each new TSA‑style crisis and watch the power of the purse slip away piece by piece, or repair the process so that future presidents never have the chance to spend first and justify later.