President Donald Trump played the commander-in-chief card when he decided how to pay troops during a government shutdown. It doesn’t feel like much of a leap for him to claim unilateral authority over the entire defense budget.
Even the most expansive views of the Constitution’s commander-in-chief clause have been limited to how absolutely the president can decide to take military action.
But for true believers of the unitary executive theory, it’s not hard to imagine a constitutional lawyer trying to persuade courts that because the Constitution declares “the president shall be commander in chief of the Army and Navy,” you can’t command the forces without commanding where and how they spend money.
It wouldn’t be an entirely novel argument.
Seventy-three years ago, in his concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, Supreme Court Justice Robert Jackson noted that more than one president had claimed the commander-in-chief clause “vests power to do anything, anywhere, that can be done with an army or navy.”
Even in the mind-blowing schemes of things shaking the foundations of Washington, Congress being overpowered on control of more than 50% of all discretionary federal spending would be about an 11 on the Richter scale. Why bother having Congress at all?
The Trump administration has dismissed concerns about Congress’ power of the purse while asserting an expansive role in budgetary matters for the president — not surprising when the author of Project 2025’s chapter about the White House is now serving as head of the Office of Management and Budget.
Take the sweeping GOP tax-and-spending
The Pentagon didn’t meet the deadline, and there wasn’t a peep. Just like there was no assertion of legislative power when the Pentagon didn’t swiftly detail—as required by law—the accounting moves it made to pay the troops on Oct.15.
Congress could have voted on legislation to pay the troops—as lawmakers have done in shutdowns past—but GOP leaders decided to play hardball and not bring it up for a vote even though military veterans in their conference pushed for one. It was a conscious and strategic decision by congressional leaders that allowed the executive to muscle through.
Maybe the powerful Republican leaders of the congressional Armed Services and Appropriations committees are diplomatically criticizing the administration out of the public eye.
Even if that’s the case, there’s no evidence they’re clawing back their congressional authority or that they are really clamoring to, despite the Constitution stating “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Congress is also constitutionally empowered to “raise and support Armies” with a two-year time limit.
Still, Trump may assert the power of the defense purse, a move that would come on top of withholding money Congress appropriated or moving money at will without congressional involvement— and no one has stopped him there. For many, the ends of ensuring troops are paid overrides any concerns about the means used to do it.
The Constitution is equally unequivocal that Congress has the power to declare war. Presidents seized that power six decades ago. And Trump absolutely took decisions on military action in his own hands with the strikes on alleged drug boats off Venezuela’s coast. Congress willingly handed him over that power, too.
The Constitution says Congress has the power to raise taxes. Trump has essentially imposed new taxes on whoever he wants, by how much he wants, whenever he wants, with his tariffs. Congress, again, has gone along. Later this year, we’ll learn if the Supreme Court will, too.
Trump’s lawyers previously parried a question from a federal appeals judge about whether he’d be criminally immune if he ordered Seal Team 6 to assassinate a political rival. And ultimately won the case.
Arguing that he can control military spending suddenly doesn’t seem like such a stretch.
To contact the reporters on this story:
To contact the editors responsible for this story: