When a government shutdown occurs, the Antideficiency Act requires agencies to stop their operations. This protects Congress’s power over federal spending by preventing the executive branch from operating without funding. This act, as spelled out in 31 U.S.C. § 1341, prohibits agencies from incurring obligations or making payments in advance of or more than an appropriation.
This clear prohibition, however, did not stop President Trump from announcing on October 23 — more than three weeks into the shutdown — that he had accepted a “donation” (bribe) from a wealthy donor to be used to pay the salaries of military personnel. Two days later the New York Times identified the donor as Timothy Mellon, heir to the Mellon family banking fortune and a big donor to Republicans.
Trump’s action was a clear violation of the Antideficiency Act and the Appropriations clause (Article 1, Section 9, Clause 7). Even more alarming, it put the U.S. military into Trump’s debt, while he, in turn, opened himself to influence by a private oligarch.
Even more alarming still was the near-total absence of any alarm coming from Republicans in Congress. But why should anyone be surprised by a supine and neutered Congress? Trump had already blown away the separation of powers doctrine that is the centerpiece of the U.S. Constitution – as seen in Congress’s rubber-stamp approvals of questionable appointments, vindictive prosecutions, and other lawless actions.
There are at least two other illegal and/or unconstitutional ways that Trump has now usurped Congress’s control over the military. First, federalizing the National Guard and deploying them to police U.S. cities is a clear violation of the Posse Comitatus Act. This Act, passed by the Congress and signed into law by President Rutherford B. Hayes in 1878 in the wake of Reconstruction, limits the use of the U.S. military (including Federalized National Guard) to enforce domestic law. Using the military is the wrong approach to fighting crime. Trump’s actions in circumventing the Posse Comitatus Act were based on a lie — that there is a crime emergency, when in fact all the data show that violent crime rates are down in American cities.
Since then, Trump has expanded his use of the National Guard, as well as active-duty military units, beyond the original two (Los Angeles and the District of Columbia) into more Democratic-run U.S. cities, including (as of this writing) Portland, Oregon; Chicago, Illinois; and Memphis, Tennessee. California Governor Gavin Newsome filed a lawsuit in federal court challenging the Trump administration’s violation of the Posse Comitatus Act in deploying the military in Los Angeles. Federal judge Charles Breyer ruled in September in favor of California and issued an injunction against the deployment. The injunction was stayed by the Supreme Court while appeals play out in the federal courts.
The situation remains fluid, with legal challenges continuing in California, Illinois, and Oregon, while Trump continues to threaten expanding military deployments to other cities, including New Orleans, New York City, Baltimore, San Francisco, Oakland and St. Louis. Meanwhile, Trump threatens to invoke the Insurrection Act, primarily used to enforce Civil Rights laws and last used in 1992 to contain the Rodney King riots, as a pretext to send the military into peaceful American cities.
Second, what is even more alarming is Trump’s usurping the U.S. Coast Guard’s role in interdicting drug smuggling into the U.S. The Coast Guard has broad powers to enforce maritime law. But Trump is wholly uninterested in a law enforcement approach to drug smuggling; he instead has declared that Mexican and Venezuelan drug smugglers are enemy invaders and has deployed the U.S. military to kill them – despite the fact that there is NO chance that these short range, open speedboats are actually headed across more than 1000 miles of open water to the U.S. Trump’s action in turning over this law enforcement function to the U.S. military is not only a violation of the Posse Comitatus Act, it is a clear violation of the constitutional doctrine of separation of powers. Article I, Section 8 of the U.S. Constitution places declaration of war powers solely with the U.S. Congress, not the President. Every time the U.S. Navy bombs a civilian speedboat alleged to be carrying illegal drugs in the absence of a Congressional declaration of war or a congressional resolution transferring war powers to the President, it is, arguably, committing a war crime.
It is inexcusable that Trump is putting U.S. military personal in such legal jeopardy.
It is inexcusable that the Republican-led Congress has allowed Trump to seize their constitutional power. It is inexcusable that so many Americans have turned a blind eye to Trump’s blatant disregard of the U.S. Constitution.
Jeff Colvin has spent his professional career as a research physicist, first at the Los Alamos National Laboratory and then at Lawrence Livermore National Laboratory, the two US nuclear weapons design laboratories. He lives in Gettysburg part-time and is chair of Gettysburg DFA Government Accountability task force.
Leon Reed is a former US Senate staff member, defense consultant, and history teacher. He is a 10 year resident of Gettysburg, where he writes military history and explores the park and the Adams County countryside. He is the publisher at Little Falls Books, chaired the Adams County 2020 Census Complete Count Committee and is on the board of SCCAP. He and his wife, Lois, have 3 children, 3 cats, and 5 grandchildren.