Transportation Security Administration employees received their first paychecks on Monday following a Thursday directive from President Donald Trump ordering that they be paid during the Department of Homeland Security shutdown.
The move has sparked debate over whether the president can authorize pay without congressional approval, given that the Constitution grants Congress the power of the purse.
What is the emergency order?
On Thursday, Trump signed an order without the approval of Congress to pay TSA officers. Employees at other agencies funded by DHS, such as the Secret Service and the Coast Guard, are still working without pay.
The Trump administration directed DHS officials to find existing funds to compensate TSA workers despite the lapse in appropriations.
The administration directed Homeland Security Secretary Markwayne Mullin to “use funds that have a reasonable and logical nexus to TSA operations to provide TSA employees with the compensation and benefits.”
A White House official said funding from last year’s One Big Beautiful Bill Act would be used to cover the payments in a statement to the Washington Examiner.
The office compared the move to Trump’s efforts to pay military personnel during last October’s full government shutdown.
“Not unlike actions taken during the first Democrat-shutdown … President Trump has determined that congressional Democrats have created an emergency situation that cannot be allowed to continue,” the official said.
Is the action legal?
John Shu, a legal scholar and commentator who served in the White House for Presidents George H.W. Bush and George W. Bush, said the issue falls into a gray area with little precedent. “It’s legally ambiguous, and no court has ever had to decide something like this,” he said in a statement to the Washington Examiner.
Shu pointed to Congress’s use of broad funding allocations, known as block grants, and to Trump’s declaration of the TSA shortage as a national security emergency as key factors shaping the administration’s legal argument.
Shu indicated that presidents have much broader discretion during national emergencies and that Congress does not always spell out a specific use or allocation for every dollar. “They’ll often approve massive block grants for huge agencies like DHS … and in that case, the executive branch can draw from those pools and use it to pay the TSA agents, especially during an emergency situation.”
Still, he noted limits to that reasoning, adding that “even though Congress does block grants from time to time, they often do specify certain allocations … so it is an open question, depending on the budget’s specific language.”
Despite the uncertainty, Shu argued that practical and political realities make a legal challenge unlikely.
“People can argue all they want about how technically it’s not right … but because he has a Republican House and Senate, and because obviously the president controls the Department of Justice, no one with standing is going to complain,” Shu said, “and if no one complains, the courts can’t do anything about it.”
Why is the president stepping in?
The partial government shutdown has now stretched on for more than 45 days.
Senate Democrats and Republicans reached an agreement on Thursday to reopen the department without funding for Immigration and Customs Enforcement and Customs and Border Protection. House Republicans, however, refused to advance the bill, drafting their own spending bill, placing the burden to fund DHS back on the Senate, most of whom have already left for a two-week recess.
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Trump likewise criticized the Senate compromise and reiterated his opposition to any measure that does not fund immigration enforcement.
“You can’t have a bill that’s not going to fund ICE … and Border Patrol,” Trump said in an interview with Fox News, also renewing his call for Senate Republicans to eliminate the filibuster.
His comments undercut efforts by Senate Majority Leader John Thune (R-SD) to broker a deal and end the standoff.
In a Monday press conference, White House press secretary Karoline Leavitt was asked if the administration has a plan to reopen DHS.
“The president just can’t keep signing presidential memorandums and proclamations every time Congress fails to do its job,” Leavitt said.
The Democrats are “holding the country hostage” by “picking and choosing which programs and agencies they want to fund just because they don’t like this administration’s policies,” she said.
Leavitt indicated that Trump is also encouraging Congress to stay in Washington and “permanently fix this problem.”
What DHS officials are saying
Acting Assistant Secretary of the DHS Office of Public Affairs Lauren Bis said most employees have already received back pay. That included at least two paychecks.
“TSA officers are grateful … for leadership to put money back into the pockets of TSA employees who worked without pay,” Bis said in a statement to the Washington Examiner.
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She added that more than 500 officers left the agency during the shutdown, and thousands called out due to financial strain.
Some employees may still experience delays due to processing problems while the government works to complete remaining payments, Bis added.