The Homeland Security Shutdown and the Power of the Purse

The Department of Homeland Security has been shut down for more than 10 weeks. Yet immigration enforcement has continued largely because Congress previously provided substantial long-term funding to Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). But that is only part of the story: Core immigration enforcement activities are also among the functions that the executive has consistently treated as excepted during a shutdown. Meanwhile, the administration has used immigration-related funding to pay Transportation Security Administration (TSA) employees, softening the shutdown’s most visible public effects.

Shutdowns are not self-executing. Within statutory limits, the executive branch exercises significant discretion over which activities continue, which funding streams cushion the blow, and how much disruption results. That discretion is inherently political. A president expecting Congress to bear the blame may allow visible disruptions to intensify, while one facing public backlash may work to blunt them.

While not a regular tool of congressional control, shutdowns enable Congress, in extreme cases, to cut off funding for unlawful executive action. That function matters most for coercive government functions—immigration enforcement, law enforcement, and the military. Yet those functions are precisely where the emergency exception is most likely to apply. As a result, they can continue at substantial capacity even during a shutdown. This produces a structural asymmetry: The executive can maintain detention, removal, and enforcement operations while other government activities are curtailed. The very exercises of government power that most threaten individual liberty—and that Congress may be seeking to constrain—are often the easiest for the executive to sustain during a shutdown.

How Executive Discretion Reshapes a Shutdown

Three features of appropriations law are especially important here: the availability of other funding, the scope of exception authority under the Antideficiency Act, and the limited transparency surrounding lapse operations.

Applying the Emergency Exception

The Antideficiency Act (ADA) prohibits agencies from obligating or expending funds in excess of available appropriations and from accepting voluntary services. During a shutdown, that prohibition generally requires agencies to furlough employees whose salaries depend on funding that has run out.

But there are exceptions, most notably the ADA’s “emergency exception” for “emergencies involving the safety of human life or the protection of property.” Activities that continue on this basis are considered “excepted,” and the employees who perform them must continue working without pay, with compensation restored only after the shutdown ends. The expectation of back pay means most excepted employees continue working, particularly in the early stages of a shutdown, allowing agencies to sustain operations at substantial capacity.

Applying the emergency exception is not mechanical. The Department of Justice has operationalized the statute, permitting agencies to continue functions where there is a “reasonable and articulable connection” to the safety of human life or the protection of property and a “reasonable likelihood” that delay would compromise that safety or protection to a “significant degree.” Each element of that standard—how the “function” is defined, how direct the connection to safety must be, and how likely and severe the anticipated harm from delay must be—requires contestable judgments. Those judgments are made against a backdrop of political incentives that can favor either narrow or expansive interpretations.

This flexibility creates opportunities for the executive to push against—and at times exceed—the legal bounds of the emergency exception. For example, during the 2018–2019 shutdown, the Trump administration relied on the emergency exception to justify the Internal Revenue Service processing tax returns. The Government Accountability Office later concluded that this activity violated the ADA because suspending return processing would not pose an imminent threat to the protection of property.

Directing Funding Available During a Shutdown

A lapse in appropriations does not halt all agency operations. Agencies may continue certain activities by relying on funding that remains available, including multi-year or no-year appropriations, retained fees, and carryover balances. Employees paid from those sources are classified as “exempt.” For example, U.S. Citizenship and Immigration Services is funded primarily through application fees and continues operating during a shutdown largely on that basis.

The availability of such funding, however, does not give agencies free rein to shift costs. Under the Purpose Statute, agencies may use funds only for the purposes Congress authorized, and they generally may not charge available appropriations for costs typically attributed to a lapsed appropriation. Those constraints limit, but do not eliminate, the executive’s ability to shift resources during a shutdown.

In practice, however, the combination of available funding and statutory flexibility can allow the executive branch to blunt the effects of a shutdown selectively. The extent of that flexibility depends in part on how specifically Congress has defined the permissible uses of available funds and whether Congress has structured those appropriations so that they can be used in place of lapsed funding. In the One Big Beautiful Bill Act (OBBA), for example, Congress specified that certain Department of Homeland Security appropriations were available “in addition to amounts otherwise available,” permitting the department to use the funds in place of a lapsed appropriation. Where statutory purposes are framed broadly, that structure expands the executive’s ability during a shutdown to sustain activities that would otherwise be disrupted.

The availability of these funds has also created opportunities to use funding aggressively—or unlawfully—to blunt politically salient disruption. During the 2018–2019 shutdown, the National Park Service used fee revenues—appropriated for discrete purposes such as repairs and improvements—to maintain routine park operations, which GAO concluded violated the Purpose Statute and the ADA. More recently, during the 2025 shutdown, the Pentagon accepted a $130 million gift to pay service members. Although it is unclear whether those funds were ultimately used to pay personnel, doing so likely would have violated the ADA.

These episodes reflect a broader pattern: When faced with the prospect of visible disruption, the Trump administration has pushed available funding authorities to or beyond their legal limits to sustain operations. The current shutdown reflects the same dynamics: The administration has relied on precisely this flexibility to redirect immigration-related funding to TSA, the Federal Emergency Management Agency (FEMA), and other parts of the Department of Homeland Security with no clear connection to immigration.

Obscuring Shutdown Operations

Limited transparency into agencies’ shutdown operations does not itself create discretion, but it magnifies the significance of the discretion agencies already possess. Although departments publish contingency plans in advance of a shutdown, they are typically presented at a high, department-wide level or lack sufficient detail at the agency level, making it difficult to determine how specific activities are classified or what funding supports ongoing operations—for example, whether particular functions are treated as “excepted” under the ADA, how broadly those functions are defined and staffed, or whether they are instead sustained through multi-year appropriations. ICE, for instance, estimates that 19,626 employees will continue working during a shutdown but does not specify how many are exempt versus excepted.

Opacity extends beyond the plans themselves. During a shutdown, agencies are not bound to adhere to them; they may need to adjust operations in response to real-world developments. But that flexibility also creates space for undisclosed shifts in how agencies classify activities or deploy funding. For example, CBP is using OBBA funds to pay far more personnel than its published plans would suggest.

And because shutdowns are often resolved before oversight or litigation can catch up, aggressive uses of exception authority or available funding may never receive timely scrutiny. The result is a system in which the executive can make consequential decisions about how to classify activities, allocate funding, and deploy personnel during a shutdown, while outsiders have limited ability to assess, in real time, whether those decisions remain within statutory bounds.

The Department of Homeland Security Shutdown in Practice

The current shutdown of the Department of Homeland Security shows how these dynamics operate in practice. The extent of disruption turns on the scope of the shutdown and on how the executive defines excepted functions and deploys the funding that remains available.

Aggressive Use of Long-Term Funding to Fund CBP and ICE

CBP and ICE have sustained near-full operations during the shutdown largely by relying on OBBA’s long-term funding. Congress limited those funds to specific, enumerated purposes—for example, to “hire and train additional” personnel—language that does not neatly extend to paying the salaries of existing staff. Appropriations provisions are often interpreted with some flexibility, and the department’s use of those funds to support ongoing personnel costs reflects a relatively expansive but still defensible reading of OBBA’s terms.

In Neguse v. ICE, a district court rejected the Department of Homeland Security’s use of OBBA funding to cover salaries within the Office of the Secretary and Management Directorate. The court concluded that funding for hiring and training did “not extend to the salaries, costs, and expenses of the relevant DHS offices.” Although the decision is on appeal, it shows that the department has already pressed an expansive interpretation of its OBBA funding and that at least one court has found that interpretation inconsistent with the statute.

Using Immigration Funds to Pay TSA and Other Non-enforcement Components

As the impasse continued, President Trump publicly suggested on March 26 that TSA employees would be paid using an alternative funding source. The next day, the Senate passed a bipartisan measure funding the Department of Homeland Security without immigration enforcement, but House Republicans quickly rejected it. That night, President Trump issued a presidential memorandum directing the Department of Homeland Security to begin paying TSA employees using funds with a “reasonable and logical nexus to TSA operations,” without identifying any specific appropriation. President Trump issued another presidential memorandum on April 3 with the same structure, this time directing payment to “each and every employee of DHS.”

The administration’s directives are notable for failing to identify any specific appropriation. It later became clear that the administration paid personnel out of the $10 billion in OBBA funds appropriated for activities supporting the department’s “mission to safeguard the borders.” Using those funds to pay TSA personnel raises serious questions under the Purpose Statute, as routine aviation screening—particularly for domestic travel—has only an attenuated connection to border security. For payments to personnel at other non-enforcement components of the department, like FEMA, that connection disappears.

The timing of the Trump administration’s actions underscores the risk of shifting legal interpretations for political advantage. TSA personnel remained unpaid for weeks. The administration directed that those employees be paid only after staffing shortages and long airport lines imposed growing political costs and the Senate passed a bill to fund the department’s non-immigration components. That sequence—combined with the failure to identify a funding source in the presidential memoranda—suggests the administration did not initially treat OBBA funds as available for this purpose and shifted positions only as the political costs of disruption increased.

Exception Authority and Immigration Enforcement

Public discussion of CBP and ICE’s continued operations during the shutdown has focused on OBBA’s immigration funding. But even in the absence of that funding, immigration enforcement would remain largely insulated from disruption, given that the executive branch has read the ADA’s emergency exception to apply broadly to immigration enforcement and other coercive forces.

As noted above, the Department of Justice has traditionally understood the emergency exception to require a “reasonable likelihood” that delay would compromise the safety of human life or the protection of property to a significant degree. In its own shutdown planning, however, it has applied an expansive standard, treating any impairment—or even perceived impairment—of law enforcement capacity as a potential threat to life and property. Likewise, the Department of Homeland Security has previously classified core immigration enforcement functions—border security, detention, removal operations, and related investigative activity—as excepted. In prior shutdown planning, including during periods when multi-year funding was limited, more than 80 percent of ICE and 90 percent of CBP personnel were designated exempt or excepted. The result is that the very activities Congress might most need to constrain through a funding lapse are among those most likely to continue uninterrupted.

This produces a structural asymmetry in shutdowns. Functions tied to the executive’s coercive authority are systematically preserved, while regulatory, administrative, and safety-net functions are more likely to be curtailed. The issue is not that safety-related activities continue—many plainly must—but that current practice allows functions defined at a high level of generality to persist with little calibration to actual risk.

That asymmetry sits uneasily with the Constitution’s appropriations framework. The Army Clause’s two-year limit on appropriations—the Constitution’s only temporal constraint on federal spending—reflects the framers’ deep concern with preventing the executive from maintaining ongoing coercive forces without regular congressional approval. The emergency exception does not violate that structure. But by enabling the executive to sustain substantial enforcement capacity even during a shutdown, it weakens Congress’s practical ability to use the power of the purse as a constraint. The result is a widening gap between Congress’s formal authority and its real-world leverage during a shutdown.

Restoring Congressional Control Over Shutdown Dynamics

These dynamics are not inevitable. They reflect choices—both in how Congress structures alternative funding sources and in how much discretion it leaves to the executive during a shutdown. Without additional constraints, however, the executive branch will continue to use that discretion to shape the practical effects of a shutdown in response to shifting political incentives.

The reforms below would not eliminate all executive discretion, but they would meaningfully constrain the executive’s unilateral ability to shift shutdown operations for political advantage.

Constraining Coercive Functions

Congress should require agencies that exercise coercive authority to apply the emergency exception at the level of discrete operational activities and to justify associated staffing levels by reference to specific risks. Under current practice, agencies often rely on categorical or program-level assertions about public safety to sustain broad enforcement operations during a shutdown. For example, front-line responses to emergencies might be distinguished from investigative functions that are less time sensitive.

Agencies should also be required to explain the personnel assigned to excepted activities, including why the scale of continued operations is needed to mitigate risks and why reduced staffing would not suffice. This approach would allow agencies to respond to real risks while preventing large-scale coercive operations justified only by generalized assertions.

Limiting the Use of Retained Funds

Congress could also establish a default rule making gifts, fees, and penalties retained by an agency unavailable during a shutdown unless Congress expressly provides otherwise in the underlying statutory scheme. Agencies have used these funds to sustain operations during shutdowns and thereby limit the political fallout, even at times stretching their permissible uses beyond statutory limits.

Because continued access to such funds may be justified in some contexts, the proposed default rule would not displace existing statutes. Instead, it would require Congress to decide in advance, through clear statutory text, whether such funds remain available during a shutdown.

Enhancing Transparency

Congress cannot meaningfully oversee shutdown operations when it lacks visibility into how agencies are operating. To address that gap, Congress should require more granular, prospective disclosure of how agencies plan to operate during a shutdown. Rather than relying on current Office of Management and Budget (OMB) guidance, which aggregates information at the department level, Congress could impose baseline statutory requirements for contingency plans that include agency-level detail. At a minimum, these plans should report, by agency and function, the number of exempt employees by funding sources, and the number of excepted employees by exception type. Providing this level of detail would better align disclosure with where operational decisions are made, offer an early signal of how expansively agencies intend to interpret their authorities, and make it easier to determine when an agency deviates from its plans.

That prospective transparency should be paired with standardized ex post reporting. H.R. 5220, the Congressional Power of the Purse Act, would require OMB to report on obligations and expenditures during shutdowns lasting five or more days, including the amount, the account charged, and the legal authority for each action. This would create a governmentwide record of how agencies operated, replacing the current reliance on after-the-fact reconstructions from incomplete agency reporting. By tying specific activities to particular appropriations and legal justifications, it would strengthen oversight, deter violations, and constrain expansive or shifting interpretations of appropriations law.

Together, these requirements would give Congress both an advanced view of how agencies plan to operate during a shutdown and a retrospective record of how they actually did, strengthening Congress’s ability to respond during and after the shutdown through oversight and subsequent lawmaking.

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The current Department of Homeland Security shutdown shows that the effects of a shutdown in appropriations are not fixed by Congress alone. They depend on executive choices about which functions to sustain, which funds to deploy, and where disruption will be felt. Without clearer constraints on that discretion, Congress’s power of the purse becomes increasingly illusory in the very moments it is meant to matter most.