Trump's shutdown funding workarounds are on shaky legal ground

• He's eliminated a major pressure point to negotiate an end to the shutdown.

The big picture: Federal employees don't get paid during a government shutdown, but the White House has redirected funds to ensure that some workers — mainly the military and law enforcement — keep getting their paychecks.

• Spending money, in ways Congress didn't authorize, is likely illegal, lawyers and policy experts say.

Catch up quick: The administration paid the troops by diverting $8 billion in funds allocated for military research and development. There is no apparent precedent for pulling this type of maneuver in a shutdown.

• In a five-page memo first reported by Axios the Office of Management and Budget argued that presidents can do this in emergencies where national security is at risk, pointing to George Washington in the 1794 Whisky Rebellion and Abraham Lincoln in the Civil War, among others.
• The White House is also paying a select group of federal workers — mainly those in law enforcement, including deportation officers, air marshals and certain FBI workers — WaPost recently reported. It's unclear where those funds are coming from.

What they're saying: "What President Trump did is perfectly legal and constitutional," Mark Paoletta, OMB's general counsel, said in a post on X.

• The White House also pulled off a different workaround to fund a food aid program threatened by the shutdown.
• That likely was legal, experts told Axios, because it relied on transfer authority that's written in the law.
• The administration isn't finding funds for everything — the Agriculture Department says it can't use contingency funds to pay for food stamps, according to a memo first obtained by Axios.

How it works: But those authorities don't allow for shifting R&D funds to pay the troops, says Jessica Riedl, a senior fellow at the Manhattan Institute, a conservative think tank.

• Shifting funds across fiscal years, as Trump did, is also not allowed, she says.

Zoom in: The Anti-Deficiency Act, a law first passed in the 19th Century, holds that agencies can't spend more than Congress authorizes — or use funds for something other than what they've been allocated for.

• The troop-paying strategy "undermines the whole concept of the power of Congress to appropriate money," says Thomas Kahn, a professor at American University who worked for the House Budget Committee for decades. That power is a fundamental precept of Article 1 of the Constitution, he says.

• "It's moving into very treacherous territory."

Yes, but: The anti-deficiency law is mostly meant to keep some rogue agency official from spending money inappropriately.

• What the administration is doing now is likely not something that the law's crafters would've anticipated, says Riedl.
• It's not clear how the law would even be enforced. "I don't have a good answer. I'm not sure anyone does."

Between the lines: "The administration unilaterally repurposing Congressionally appropriated funds is illegal, plain and simple," says Romina Boccia, director of budget and entitlement Policy at the Cato Institute, a libertarian think tank.

• "The question is who will stop the administration? Checks and balances are not self-executing," says Boccia, who has also worked at the ultra-conservative Heritage Foundation.

The intrigue: Congressional Democrats have said Trump's creative accounting was illegal — but that they're fine with it.

• "Yes it's chaotic and yes it's illegal, but ... you don't want to see anyone get hurt. Speaking personally, yes, they should find a way to pay folks," Rep. Greg Landsman (D-Ohio) told Axios.

The bottom line: What is legal and what will be allowed are two different questions.