Dems Scold Trump For Not Stealing Money Sooner
Do not congratulate!
As the DHS funding lapse drags on, American airports are at buckling. TSA agents haven’t been paid for six weeks and are calling out sick in record numbers — some airports have more than a third of staff MIA, and more than 500 TSA agents have quit altogether. This weekend saw hours-long security lines, with travelers arriving four hours early and still missing their flights.
Trump’s first brain wave was to send in ICE agents, who are getting paid. Turns out a squad of untrained thugs whose main job is civil rights violations weren’t much help. Senate Republicans begged him to sign a partial DHS bill that would have funded TSA but not ICE and CBP, but he insisted that they ought to just kill the filibuster instead.
And so President Fire Alarm did what he always does: Shout “EMERGENCY!” and then claim the power to break the law.
On Friday he signed an executive order instructing newly-minted DHS Secretary Markwayne Mullin to pay TSA agents, despite the fact that there’s no money appropriated to do it.
Decrying “congressional Democrats’ reckless decision to prioritize criminal illegal aliens over American citizens,” Trump ordered Mullin to “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).”
Usually Trump just gestures vaguely in the direction of Article II of the Constitution and claims the power to command the sun to rise in the west, so perhaps he’s due one muted cheer for pointing to the actual code. But that statutory cite is quite a head-scratcher. Section 1301(a) says only that “Appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.” Trump is specifically ordering DHS to apply appropriations to objects for which they were not made — effectively citing the rule he's breaking as justification for breaking it.
CNN reports that Trump intends to siphon off cash for TSA from the deportation slush fund in the One Big Beautiful Bill Act (OBBBA), which is keeping ICE’s goons paid during the DHS shutdown. Congress appropriated that $75 billion for ICE and CBP specifically as multi-year or no-year funding, which doesn't expire at the end of the fiscal year and isn't subject to the annual appropriations cycle. So when DHS funding lapsed in February, ICE and CBP kept spending because they had a separate, still-active pot of money that the shutdown couldn't touch.
The theory here is that airport security has a “reasonable and logical nexus” to border operations — a test that appears nowhere in the statute, nowhere in relevant caselaw, and that the White House invented wholesale for the occasion. But maybe if you take several shots of Everclear and squint real hard, working the X-ray belt in Toledo counts as border patrol activity and can be paid for out of OBBBA.
Sadly Tom “Cava” Homan was still sober Sunday morning when he sat down with CNN’s Jake Tapper, protesting that he was but a simple policeman, who knows nothing about the law.
There is no universe in which the OBBBA funds can legally be used to pay TSA agents. The Antideficiency Act bars federal agencies from obligating or spending funds before they are appropriated or in excess of the amount approved by Congress. And putting in your executive order that you’ll “adjust applicable funding accounts within DHS” once Congress appropriates money for TSA doesn’t fix the problem.
Under the Constitution, Congress has the power of the purse. The Trump administration has systematically disregarded this, ignoring congressional appropriations and ordering the shutdown down of everything from Voice of America to the Institute of Museum and Library Services. Particularly in this moment, Democrats have an affirmative obligation to use all their leverage over the budget to control how tax dollars are spent.
Right now, Democrats want an agreement that ICE and CBP will: quit pretending that administrative warrants it signs for itself are the same as judicial warrants; take off the masks and put on badges that identify them; and quit conducting raids in sensitive locations, like hospitals, churches, and schools. Trump wants to keep doing those things, and he’s pretending that he can cancel out Congress’s leverage with accounting tricks.
And so it’s a bit disappointing to see Democrats asking why Trump didn’t steal the money — and their own power! — sooner.
“Tom Homan did an excellent job of dodging your question earlier in the show when he said that he doesn't know why Trump didn't start paying the TSA agents sooner if they had the authority all along,” New Jersey Senator Andy Kim replied. “Well, I know the answer to that. The American people know it's because he didn't care about them, that he cared about ICE. He cares about his efforts to antagonize and assault the American people in our communities.”
Senator Kim is great, but this answer is terrible. The reason Trump didn’t steal the money sooner was because it’s flatly illegal and he was hoping Congress would buckle and give him the money with no strings attached. When Democrats used their leverage to make the shutdown unpleasant, he rejected any compromise and effectively kicked over the table.
By validating that gambit and complaining only about its timing, Democrats are giving up their own power to get ICE under control. As Senate Majority Leader Thune admitted, Trump's illegal order “takes the immediate pressure off” Republicans to negotiate with Democrats, allowing everyone to leave town for a two-week recess without getting screamed at in the airport.
Obviously, TSA workers deserve to be paid. But the law requires them to be paid by an act of Congress, not a presidential raid on border security funds. Framing the debate as a question of why the president didn’t steal the money faster is like a little old lady tut-tutting at a mugger for failing to snatch her handbag at a reasonable hour. Congress has the power of the purse, and they need to keep socking that mugger in the nose when he tries to grab it!