With the second military payday of the current government shutdown approaching Nov. 1, Congress is struggling to pass legislation that could pay troops and potentially civilian federal employees.
The latest attempt, which would have paid only those federal workers deemed “essential” during the shutdown, failed in a 54-45 vote Oct. 23. Notably, however, the Republican-sponsored bill did gain support from three Democrats, prompting congressional leaders on both sides of the aisle to vow to continue to seek a compromise on shutdown pay in the coming days.
If that effort also fails, the Pentagon plans to use a new directive from President Donald Trump to pay troops using unspent non-personnel appropriations. The legality of that policy could be challenged, however.
On Oct. 11, days before the military was poised to miss its mid-month payday, the President announced via social media that he had instructed Defense Secretary Pete Hegseth to use “all available funds” within the Defense Department to pay troops during the shutdown. The Pentagon identified $8 billion that had been appropriated in fiscal 2025 for research, development, test, and evaluation programs to cover the expense.
During past shutdowns, lawmakers passed legislation to pay troops and sometimes designated essential civilian workers. But a “Pay our Military Act” introduced in the House in mid-September never made it to a vote this session; Speaker Mike Johnson (R-La.) has not reconvened the House since Sept. 19.
On Oct. 15, Trump announced he had directed Hegseth to use “any funds appropriated by the Congress that remain available for expenditure” to pay military members for the duration of the shutdown.
Defense experts and former Pentagon officials said reprogramming funds without congressional approval breaks with past norms and could potentially be challenged on legal grounds. But they also said the lack of public pushback from lawmakers and the top cover from Trump’s memo means the department could do it again.
One former high-ranking official estimated the Pentagon has upwards of $200 billion in unused research and development and procurement funds it could draw from—plus another $150 billion from the Big Beatiful Bill Act passed this summer. “I believe they are setting this up to be a virtually bottomless pit through which they can do this at the end of the month paycheck and the middle of November paycheck and as long as they need,” the former official told Air & Space Forces Magazine, which granted anonymity because of the sensitivity of the issue.
A Legal Gray Area
While paying members of the military during a government shutdown is not controversial, the Pentagon’s methods are. Circumventing Congress and its power of the purse could violate the Anti-Deficiency Act, which dictates the conditions under which federal agencies can repurpose funding appropriated by Congress. The underlying premise of the law is that appropriations are provided for a specific purpose, for a defined duration of time and for a particular amount.
Rich Brady, CEO of the nonprofit Society of Defense Financial Management and a former Defense Department budget officer, told Air & Space Forces Magazine that at the very least the legality of the department’s actions in this case is “murky.”
Two open questions, Brady said, are whether DOD provided proper notification to lawmakers and whether the transfer exceeded the ceiling, which Congress sets annually.
Typically, when the department wants to transfer funds, the Pentagon comptroller sends the House and Senate appropriations and armed services committees a detailed accounting of the programs money is being drawn from and where it is going instead. While Congress is not required to approve those plans, the Pentagon typically waits for lawmakers’ to sign off before moving funds. The Pentagon did not respond to questions from Air & Space Forces Magazine about funding sources, but according to multiple news organizations reporting on the matter, DOD did not notify lawmakers of its plans and has not provided details on which R&D funds are becoming bill-payers for military pay.
One interpretation, Brady said, is that Trump’s public announcement of the transfer constituted legal notification, and that his presidential memo directing the funding shift provided the necessary legal justification.
As for transfer limits, Congress each year grants a general transfer authority through its appropriations and authorization bills allowing the Pentagon to shift funds to new accounts. This includes a cap on how much can be transferred. From fiscal 2022 to 2024, that cap was set at $6 billion. In the fiscal 2025 continuing resolution, which expired Sept. 30, it was increased to $8 billion.
Without appropriations or authorization bills in place for fiscal 2026, the Pentagon’s legal authority to transfer funds is unclear. While the funds being transferred to pay troops were appropriated in fiscal 2025, the laws detailing general transfer authority set in the FY-25 continuing resolution say that the $8 billion in transfers “remain available until Sept. 30, 2025,” so any transfers beyond that date may not be allowed, Brady said.
“Without question, we’re operating in a gray area here,” he said. “What’s happening is without precedent.”
Challenging the legality of paying the troops, however, is politically risky. No politician wants to be seen depriving the military of its pay, the former official said.
Long-Term Consequences
Unilateral action by one branch of government against another is likely to have long-term repercussions, Brady said. He noted that the decision during the first Trump administration to divert $3.6 billion from DOD’s budget to fund border wall construction between the U.S. and Mexico caused lasting damage with the Senate. While DOD was able to recover some of the funds, the move caused lasting damage to relations with Congress.
“A lot of the issues around trust stem from the transfer of funds for the border wall in that period,” he said. “[There were] second- and third-order consequences of those actions.”
In response to the perceived executive overreach, Congress could choose to rein in the Pentagon’s reprogramming authorities in future appropriations or in an upcoming continuing resolution, the former official said. In the case of the border wall, lawmakers passed legislation barring funding transfers between agencies. In the future, they could enact more restrictions.
“They could give you zero reprogramming authority, and you would just be stuck with having to live with what you asked for in the budget a year ago as the world changes,” one insider said. “You don’t want to cross them.”
On the other hand, should lawmakers opt not to respond, the former official said, they’re essentially accepting the administration’s decision, emboldening the White House’s Office of Management and Budget to try similar tactics with other federal agencies in the future. Precedents are lasting, the official said.
“Once you do this once, you might try it again on something else that you can’t get the votes on for whatever reason,” the former official said. “You have a precedent now.”
