Q&A of the Day – What the President Can & Can’t Fund Without Congress
Each day I feature a listener question sent by one of these methods.
Email: brianmudd@iheartmedia.com
Social: @brianmuddradio
iHeartRadio: Use the Talkback feature – the microphone button on our station page in the iHeart app.
Today’s entry: Submitted via talkback: I am here in Pennsylvania and I think that the government that President Trump should lay off those government employees, those nonessential ones, and give the money to our armed forces and our all of the armed forces. I think that all that money that they're going to save should go to the armed forces to build more ships to do more advanced um protection for the country. Thank you.
Bottom Line: I hear your frustration and understand where you’re coming from. You raise the question of what the president is and isn’t constitutionally allowed to do pertaining to unilateral funding decisions. Also, there’s the matter of federal government layoffs during the partial shutdown that’s in play. The constitution is very clear on one of these issues, and less clear on the other. Let’s start with the matter of permanent layoffs during the partial government shutdown as it’s the issue with legal grey territory attached to it.
Early in the shutdown, the Trump administration issued RIFs, or reduction in force notices to thousands of furloughed employees. Predictably a federal judge, in this case a Clinton appointee, halted the terminations pending a further review of the case brought by unions of the employees. Earlier this week the judge extended the ruling saying it was “arbitrarily and capriciously hazards” to use the shutdown as a catalyst for the layoffs – halting them for now.
As I’ve pointed out previously, President Trump has lost approximately 90% of the legal challenges brought against his administration in lower courts, only to have had the Supreme Court eventually side with his administration over 90% of the time for cases that make it that far. It’s very possible this could be the next in line, but that will take time. The Supreme Court has upheld previous layoffs upon review by the Trump administration born out DOGE efforts earlier this year. So, for now it’s in legal limbo.
As for the question of what the president may and may not do to direct federal funds. That is very clear constitutionally.
Even during a partial government shutdown, the President of the United States may not unilaterally fund most government operations — the Constitution gives Congress the power of the purse under Article I, Section 9. However, there are specific exceptions that allow certain spending without new appropriations from Congress.
Here’s what can still be funded or continue operating during a shutdown, even without new congressional action – there are four ways this can occur:
1. Essential Excepted Activities
Certain functions continue because they are necessary for the safety of human life or the protection of property. These are allowed under the Antideficiency Act. They include:
- National security and defense operations (active military, intelligence, nuclear oversight)
- Law enforcement (FBI, DEA, Border Patrol, Secret Service)
- Air traffic control and safety operations
- Emergency and disaster response (FEMA, Coast Guard rescues)
- Operation of federal prisons
While the operations may be funded, the employees may be required to work without immediate pay, to be paid retroactively once funding resumes – as their compensation isn’t exempted.
2. Activities Funded by Permanent or Mandatory Appropriations
Essential programs have funding that doesn’t depend on the annual appropriations process. They include:
- Social Security
- Medicare and Medicaid
- Interest on the national debt
- Veterans’ benefits
- U.S. Postal Service
3. Activities Supported by Fees or Trust Funds
If an agency operates on user fees or dedicated revenue streams, it may continue using those funds. These include:
- U.S. Citizenship and Immigration Services (USCIS) (funded by application fees)
- National Park Service concessions (some operations)
- Patent and Trademark Office (fees)
- Federal Reserve (self-funded)
4. Presidential Discretionary Actions
The President can reallocate existing, already-appropriated funds within the limits of the law, but cannot:
- Create new funding streams
- Borrow money or reprogram funds across agencies without legal authority
- Override Congress’s spending power
The President can, however:
- Direct agencies to prioritize excepted activities
- Declare emergencies that may unlock specific pre-authorized funds, but only for legally defined purposes (disaster relief, etc.).
Without an act of Congress, the President can continue funding only what is already authorized — either through:
- Permanent appropriations
- Mandatory spending laws
- Fee-funded activities
- Exceptions for protection of life and property
Everything else must stop until Congress passes and the President signs new appropriations. To date President Trump has been able to pay the troops by redirecting discretionary defense spending, however significant discretionary budgets don’t exist broadly within government agencies sufficient for President Trump to pay essential employees, or to cover programs that will soon lapse without action like the SNAP program.
While it may be frustrating in the moment, it’s in the best long-term interest of the country for this check on the executive branch to be in place. Where there is clearly room for reform in my view is with essential agencies. If essential agencies are to be funded during a shutdown, the people working for those agencies should be too without direct congressional appropriations.