The Defense Department will use unobligated funds from its research and development account to pay troops as the government shutdown continues, but it remains unclear what legal authority authorizes the move, raising questions about whether it could violate the Anti-Deficiency Act.
Over the weekend, President Trump ordered Defense Secretary Pete Hegseth to “use all available funds to get our troops PAID by October 15th” as the shutdown enters its third week.
For the first time in U.S. history, service members were preparing to miss pay on Wednesday after the Senate failed to pass a stopgap funding measure and legislation such as the Pay Our Troops Act — similar measures ensured troops were paid during previous shutdowns.
A Pentagon spokesperson told Federal News Network that the department “has identified approximately $8 billion in unobligated Research Development Test and Evaluation (RDT&E) funds from the previous fiscal year that will be used to issue mid-month paychecks to the military in the event the funding gap continues after October 15.”
Moving makes it easier part of the pressure on House Speaker Mike Johnson (R-La.), who has faced growing calls to bring lawmakers back to the floor to vote on the Pay Our Troops Act of 2026 that would ensure military members, DoD civilians, Coast Guard personnel and contractors are paid during the shutdown. Johnson had previously rejected this option, saying: “The House has already done its job, it’s called the continuing resolution.” »
While the decision to withdraw $8 billion from the research and development account keeps the military from going without pay this week for the first time in history, the move raises legal questions about the administration’s authority to redirect such a large sum during a shutdown.
“I don’t see how this is legal now, having not seen in writing exactly what they are proposing to do or what authority they claim to have. I can’t say it’s absolutely not legal, but I think there’s an obvious question here: If during this shutdown you can pay the troops with unobligated funds, which the Department of Defense has available every day of every year, why wasn’t that done 12 years ago during the last shutdown? Why Did Congress have to pass the Pay Our Military Act last time? “But now it’s apparently not necessary,” a former defense official told Federal News Network.
Limits of transfer power
Congress grants the Department of Defense limited powers to use funds for purposes other than those originally approved by Congress – these powers allow the department to transfer or reprogram funds under certain conditions. A transfer moves funds from one credit account to another, while a reprogram involves a transfer of funds within the same account.
The statute also requires the Secretary of Defense to notify Congress when a transfer is made.
The National Defense Authorization Act and the Defense Appropriations Act generally include recurring general transfer authorization provisions, which set a cap on the amount the Department of Defense may transfer within or between appropriations. Continuing Resolution 2025 increased DoD’s authority to move money between appropriations accounts from $6 billion to $8 billion to cover urgent priorities, but only for the FY 2025 funding period.
“If they need $8 billion, they won’t have that authority anymore. So I don’t know what the plan is,” a former member of the House Appropriations Committee told Federal News Network.
“We are in a fundamentally different dynamic where [the Office of Management and Budget] neglected a lot of [Government Accountability Office’s] opinions in general on purchasing power. We are therefore in a period where the executive power is testing the limits of executive power, particularly in relation to the power of money. This is just another example of that. I’m not surprised at all that this is happening, and it sets a precedent since it happens over and over again on both sides,” the former staffer said.
Rich Brady, executive director of the Society of Defense Financial Management, also pointed out that research and development funds are a two-year appropriation, unlike, for example, operations and maintenance accounts, which are funded annually.
“The research and development dollars that were appropriated in 2025 are good for bonds in fiscal years 2025 and 2026 – that’s two years, so they have some flexibility on that account. The question is, how much can they legally transfer and use for military pay purposes? It’s probably not going to be the $8 billion they’re talking about,” Brady told Federal News Network.
Legal risks
The Defense Department’s decision to spend previous year’s funds to cover new obligations could raise several legal issues, including a potential violation of the Anti-Deficiency Act, which provides a legal framework for Congress to control federal spending. by prohibiting federal agencies from spending money without appropriations.
Ultimately, it would be up to this administration to decide whether to pursue legal action against any violations of the Anti-Deficiency Act by the Department of Defense.
“People who actually perform the work could be violating the Anti-Deficiency Act, which provides criminal penalties for willful violations. Of course, it takes a lot of work to show that a violation was willful. We rarely come to this. It is unlikely that anyone will face serious legal consequences,” the former DoD official said.
“We could have calculated that no one would dare object to paying the troops, whether kosher or not,” the defense official added.
Internal legal guidance – such as an opinion from OMB or the Department of Defense’s general counsel – could provide legal protection to officials who approved or executed the payments. However, these documents are rarely shared with Congress.
Beyond potential Violation of the anti-deficiency lawthe department could face scrutiny for violating congressional intent or overstepping its statutory authority. – something Congress could revisit or address in the next appropriations cycle.
“I can’t say that there is definitively an external agency or organization that would be able to step in and hold the administration accountable for spending these funds not in accordance with the wishes of Congress. Ultimately, I think what everyone really wants, and what most people would agree with, is that our military personnel need to be paid, and so this is one way to do it, but it would circumvent the intent of Congress – the assumption is that they don’t have not full transfer authority. ” said Brady.
Johnson has already pushed back against Democrats who questioned the legality of President Trump’s plan to repurpose research and development funds to pay the military and challenged them to challenge the administration’s decision.
“If Democrats want to go to court and challenge troop payments, let them do it,” Johnson said Tuesday.
The House and Senate Appropriations committees did not respond to requests for comment on whether the Defense Department informed them of the transfer of funds.
Reconciliation Fund
The $8 billion transfer to pay the troops offers only a temporary solution — enough to cover a pay period — and it’s unclear what the administration’s plan is if the shutdown continues for another two weeks or more.
The department could also draw on funds from the reconciliation program — the so-called “One Big Beautiful Bill” that was signed into law in July — but the bill’s language is restrictive enough that any transfers would still be subject to the same $8 billion cap set in the continuing resolution for fiscal year 2025.
If you would like to contact this reporter about recent changes in the federal government, please email anastasia.obis@federalnewsnetwork.com or contact Signal at (301) 830-2747.
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