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 allows the move — raising questions about whether it could violate the Anti-deficiency Act.

Over the weekend, President Trump directed Defense Secretary Pete Hegseth to “use all available funds to get our Troops PAID on October 15th” as the shutdown enters its third week. 

For the first time in U.S. history, service members were preparing to miss their paychecks this 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 of unobligated research development testing and evaluation funds (RDT&E) from the prior fiscal year that will be used to issue mid-month paychecks to service members in the event the funding lapse continues past October 15th.”

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The move eases some of the pressure on House Speaker Mike Johnson (R-La.), who has faced mounting calls to bring lawmakers back to the floor to vote on the Pay Our Troops Act of 2026 that would ensure service members, DoD civilians, Coast Guard personnel and contractors are paid during the shutdown. Johnson previously dismissed that option, saying, “The House already did its job, it’s called the continuing resolution.”

While the move to shift $8 billion from the research and development account prevents service members 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.

“It is not apparent to me how this is legal now, having not seen in writing what exactly they are proposing to do or what authority they assert they have. I can’t say it’s definitely not legal, but I think that there’s an obvious question here: if in this shutdown you can pay the troops using unobligated funds, which the Department of Defense has every day of every year— why wasn’t this done 12 years ago during the last shutdown? Why did Congress have to enact the Pay Our Military Act last time? But now, it’s supposedly not necessary,” a former defense official told Federal News Network.

Limits of transfer authority 

Congress grants the Defense Department limited authorities to use funds for purposes other than what Congress originally approved — these authorities allow the department to transfer or reprogram money under certain conditions. A transfer moves funds from one appropriations account to another, while a reprogramming involves shifting funds within the same account.

The statute also requires the defense secretary to notify Congress when a transfer is made.

The National Defense Authorization Act and the Defense Appropriations Act usually include recurring General Transfer Authority provisions, which set the cap for how much the Defense Department can transfer within appropriation or between appropriations — the 2025 continuing resolution increased DoD’s authority to move money between appropriations accounts from $6 billion to $8 billion to cover urgent priorities, but only for the fiscal 2025 funding period. 

“If they are going to need $8 billion — they’re not going to have that authority left. So I don’t know what the plan is there,” a former House Appropriations Committee staffer told Federal News Network.

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“We’re in a fundamentally different dynamic where [the Office of Management and Budget] has disregarded a lot of [Government Accountability Office’s] opinions generally about the spending power. And so we’re in a period where the executive branch is testing the limits of the executive power, particularly relative to the power of the purse. This is just another example of that. I’m not surprised this is happening at all, and it sets a precedent for it to happen again and again on both sides,” the former staffer said.

Rich Brady, the Society of Defense Financial Management chief executive officer, also pointed out that research and development funds are a two-year appropriation unlike, for instance, operations and maintenance accounts, which are funded annually.

“Research and development dollars that were appropriated in 2025 are good for obligation in fiscal 2025 and fiscal 2026 — it’s two years, so they’ve got some flexibility in that account. The question is, how much can they legally transfer over and use for military pay purposes? It’s likely not going to add up to the full $8 billion that they’re talking about,” Brady told Federal News Network.

Legal risks

The Defense Department’s decision to spend prior-year funds to cover new obligations could raise several legal issues — most notably 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 prosecute any Anti-deficiency Act violation by the Defense Department.

“The people that actually do the work could be violating the Anti-deficiency Act, which has criminal penalties for willful violations. Of course, you have to go through a lot of work to show that a violation was willing. It rarely comes to that. It’s unlikely that anybody would suffer serious legal consequences,” the former DoD official said.

“A calculation could have been made that no one’s going to dare object to paying the troops, whether it’s kosher or not,” the defense official added.

Internal legal guidance — such as an opinion from OMB or the Defense Department’s General Counsel — could provide legal protection for officials who approved or executed the payments. These documents, however, are rarely shared with Congress.

Beyond potential Anti-deficiency Act violation, the department could face scrutiny for violating congressional intent or exceeding its statutory authority — something Congress could revisit or address in the next appropriations cycle. 

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“I can’t say that there’s definitively any external agency or organization that would be able to come in and hold the administration accountable for spending these funds not in accordance with the desires of Congress. In the end, I think what everybody really wants, and what most people would agree to, is that our military personnel need to get paid, and so this is one way of doing it, but it would be circumventing congressional intent — the assumption there is that they don’t have the full transfer authority,” Brady said.

Johnson has already pushed back against Democrats who questioned the legality of President Trump’s plan to repurpose research and development funds to pay service members and dared them to challenge the administration’s decision.

“If the Democrats want to go to court and challenge troops being paid, bring it,” Johnson said on Tuesday.

The House and Senate Appropriations committees did not respond to requests for comment on whether the Defense Department notified them about the transfer of funds.

Reconciliation funds 

Transferring $8 billion to pay troops offers only a temporary fix — enough to cover one pay period — and it’s unclear what the administration’s plan is if the shutdown drags on for another two weeks or longer.

The department could also tap funds from the reconciliation package — the so-called “One Big Beautiful Bill” that was signed into law in July — but the bill’s language is narrow enough that any transfers would still be subject to the same $8 billion cap set in the fiscal 2025 continuing resolution.

If you would like to contact this reporter about recent changes in the federal government, please email anastasia.obis@federalnewsnetwork.com or reach out on Signal at (301) 830-2747.

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