Source
Moynihan (2026), LIT-061, “Mike Johnson’s Institutional Betrayal”, read in NOTE-084. The memo it discusses (27 March 2026) was checked in that reading.
What was actually shown
The memo. It directs DHS and OMB “to use funds that have a reasonable and logical nexus to TSA operations to provide TSA employees with the compensation and benefits that would have accrued … consistent with applicable law, including 31 U.S.C. 1301(a)”. It names no appropriation (NOTE-084, C1, confirmed).
The legal premise. Congress controls the “duration, amount, and purpose” of spending. Glassman (quoted): purpose restrictions are “the most bedrock feature of appropriations”. Chafetz (quoted): unilateral spending is “anti-constitutional”. The concession that carries the argument: “It’s not that the President cannot pay federal employees during a shutdown, but he has to have a clear appropriations source.”
The mechanism. A shutdown the President can end for the parts he likes is not a check on him. Paying the military during the previous shutdown went unchallenged and “set a precedent”: “If a President can point to any unspent funds for an agency, he can reappropriate it.” What is left to Congress is, in Glassman’s words, “the right to not appropriate any money”.
The choice. The Senate passed a bill funding DHS except ICE and CBP; the Speaker did not bring it to a vote and the House passed a Trump-backed bill. “Johnson chose B”: letting the President dictate appropriations. Moynihan concedes that redirecting DHS money to non-ICE work “might be considered a win for Democrats”; his objection is to the precedent, not the outcome.
What could have come out otherwise. A ruling could hold such payments lawful under §1301(a), which would leave the mechanism but remove its illegality; or Congress could reassert purpose limits. Neither had happened when the post was written.
What this does not say
- That the TSA payment is illegal. That rests on scholars’ opinions (C2), with no GAO or OLC opinion cited, and the post does not answer the memo’s own invocation of §1301(a).
- That the President cannot pay staff in a lapse. The post concedes he can, with a named appropriation.
- That the Speaker had only two options. The binary is the author’s framing, and “would pass handily in the House” is a counterfactual assertion (C4).
- That its supporting facts are established. The “record 12%” sick-call rate is unsourced and not in the memo (C5); the ICE and CBP multi-year funding (C3) and partisan steering of funds (C6) were not checked; the 1980 origin of shutdowns (C7) rests on an unread piece.
- That the text is as first published. It was edited at least six days after its date.
Connections
- THEORY-223 holds that when the rules that govern a system lie within its own action space, the governor’s authority rests on the system leaving them alone. Appropriations are a rule the legislature sets for the executive. On Moynihan’s account they become a rule within the executive’s reach once it can name any nexus as a source, and Congress’s authority then rests on the executive’s restraint. THEORY-223 is argued from agent frameworks, and the parallel is the record’s, not either author’s.
- THEORY-440 concerns an incumbent tilting the electoral field; this concerns the legislature’s control of spending. Both describe a check that stays in form while losing its force.