We’re now over a month into the second shutdown of the second Trump administration.  What have we learned? Mainly that the problem of “separation of parties, not powers” is growing worse and, in consequence, Congress’s power of the purse may be unravelling.

Shutdowns happen because of time-limited appropriations. By providing funds to most agencies for only a year at a time, Congress ensures that it has ongoing leverage over executive policy. As the Iran war, Trump’s tariffs, and the recent immigration crackdown illustrate, modern presidents hold tremendous authority to set policy, create facts on the ground, and even determine legal requirements unilaterally. Their dependence on appropriations, however, enables Congress to maintain an ongoing check on their choices.

Interestingly, the dissenters in the recent tariff case, Learning Resources v. Trump, took pains to emphasize this point. Though arguing that the President had authority to impose the tariffs, Justice Kavanaugh observed—correctly—that Congress could still block the tariffs by denying funds for their enforcement. “Importantly,” he wrote, “the House, the Senate, and the President annually approve most appropriations. As a result, each House of Congress and the President independently possesses de facto veto power over particular appropriations.”

Annual appropriations, then, give Congress leverage over executive policy, and shutdowns—the cessation of government operations due to a funding lapse—provide a backstop to this power. The trouble is that the current polarized Congress seems incapable of deploying the backstop effectively.

In the first shutdown, which affected multiple agencies and ran for forty-three days from October 1, 2025 to November 13, Senate Democrats’ demands for reopening the government did not even relate in any direct way to funding reforms or the specific appropriations at issue. Although the eventual legislation ending the shutdown reversed some government firings and prevented some others, Senate Democrats mainly demanded a continuation of certain health insurance subsidies (and ultimately settled simply for a promised vote on the issue).

To be sure, Senators were likely motivated in part by institutional concerns. From the start of President Trump’s second term, his administration embraced “appropriations presidentialism”—a set of unlawful or legally aggressive maneuvers like firings, funding delays, grant cancellations, and unilateral conditions on funding that aimed to establish stronger executive control over spending. Senators presumably played hardball over new appropriations in part to defend Congress’s rightful authority over government funds.

Insisting on healthcare subsidies, however, addressed those institutional concerns only indirectly, if at all. Healthcare is a winning wedge issue for Democrats, and Senators may have thought that power of the purse concerns were too abstract for voters. Senators may also have thought that advancing their party’s political fortunes would aid checks and balances, given that Democratic control over the House or Senate following the midterms would enable Congress to check President Trump going forward. In the short term, though, their strategy involved employing an institutional power of their branch—the authority to withhold funds—as a tool for relaying a winning message for their party.

What about the second shutdown? This time, Democrats’ demands do relate directly to the funding at issue. After President Trump’s egregious immigration crackdown in Minneapolis and the killing of two Americans by Immigrations and Customs Enforcement officers, Senate Democrats sought to impose accountability measures and limits on future enforcement as a condition of approving new funds for the Department of Homeland Security.

Ironically, holding up DHS funding did not actually shut down ICE. Tax legislation earlier in the year provided multi-year immigration enforcement funding, so for the most part the funding lapse could only affect other DHS components like the Transportation Security Administration. Still, the funding demands did at least target the relevant agency and seek conditions related to its operations.

This shutdown may even have worked. ICE ended the Minneapolis surge, President Trump fired the Secretary of Homeland Security, and the administration reportedly took steps to restrain future abuses. True, the administration might have taken such actions anyway given the unpopularity of its Minneapolis operation. But the funding cutoff provided a focus for negotiations, as well as a potential opportunity to codify constraints in law.

Unfortunately, though, politics seem to have gotten in the way once again—and this time the result may be a serious blow to future congressional leverage. Though Senate Republicans say they were willing to accept certain limits on ICE, Democrats and Republicans failed to agree on legislative language, so the Senate passed funding for the rest of DHS but not ICE while imposing no new legal limits on immigration enforcement. The House then balked at this compromise, apparently because some Republicans insist on funding ICE, and now the administration plans to pay TSA personnel anyway, notwithstanding the appropriations lapse.

As best I can tell, paying TSA would be unlawful. To facilitate the payments, President Trump issued a directive ordering DHS and the Office of Management and Budget “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 to them if not for the Democrat-led DHS shutdown, consistent with applicable law, including 31 U.S.C. 1301(a).”

The law referenced here, which is known as the purpose statute, mandates that “[a]ppropriations shall be applied only to the objects for which appropriations were made”—language understood to require some reasonable connection between the spending at issue and the appropriation’s evident aims. Against this backdrop, Trump’s directive seems aimed at stretching the existing legal understanding to facilitate the repurposing of other DHS funds. In particular, according to some reports, the President plans to use a provision in the tax bill that provided $10 billion through September 30, 2029 “for reimbursement of costs incurred in undertaking activities in support of the Department of Homeland Security’s mission to safeguard the borders of the United States.”

Using this appropriation would be a stretch, to put it mildly. TSA’s screening of outbound passengers, most of whom are flying domestically, does not do much to support DHS’s safeguarding of the borders. Using this money would thus seem to violate not only the purpose statute, but also the Anti-Deficiency Act, a penal statute that prohibits spending or committing funds without a supporting appropriation. Yet this administration will not enforce the ADA against anyone following its directions, a future administration probably won’t seek penalties retroactively, and it is unclear whether anyone right now has standing to sue.

Trump’s directive thus seems poised to set a precedent for strained and tendentious interpretations of appropriations statutes. As I discuss in a draft article, this sort of high-handed approach to spending limits was once common in federal administration. Congress, however, succeeded a century ago in establishing strong norms of appropriations compliance. It did so during the same period when it built up the powerful modern military and administrative state. Undermining that norm while retaining that state would be a serious blow to checks and balances, but it may be where our divided politics are taking us.

Zachary S. Price is a Professor at the University of California College of Law, San Francisco (formerly UC Hastings).