WASHINGTON — President Donald Trump’s plan to spend billions of dollars more on his border wall than Congress approved involves more than his invocation of emergency powers to redirect military construction funds. Before spending any of that money, Trump first intends to tap $2.5 billion in other Defense Department funds under a different claim of executive authority.
The Pentagon has not yet determined which programs will be cut to meet Trump’s demands. The acting defense secretary, Patrick Shanahan, told reporters over the weekend that he had set in motion a process to identify candidates but had made no decisions.
“I just want to make a point of this,” Shanahan added. “We are following the law, using the rules, and we’re not bending the rules, OK?”
Is this emergency-powers spending?
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No. Trump is planning to tap different pots of money in sequence, and only the fourth and last pot involves the emergency-powers statute. Before reaching that last pot, Trump plans to spend the roughly $1.4 billion that Congress approved for new border barriers in the recent spending deal and then about $600 million from a Treasury Department asset-forfeiture fund.
The third pot of potential wall money would be $2.5 billion drawn from a military counterdrug account under a different statute — one that does not involve any emergency declaration. In it, Congress has authorized the Pentagon to support other agencies’ counternarcotics efforts by constructing “roads or fences and installation of lighting to block drug-smuggling corridors across international boundaries of the United States.”
On its face, the statute appears to authorize spending only for construction. If it cannot be stretched to encompass land acquisition, the $2.5 billion would most likely be useful only for building barriers on property the government already owns. Either way, time is short. Shanahan said that “the money that could be reprogrammed for counterdrug is money that would have to be spent in this year.” The fiscal year ends Sept. 30.
Does the military have $2.5 billion in counterdrug funds?
No. When Congress passed the most recent Pentagon spending law last September, it appropriated about $517 million for counternarcotics support activities. Of that amount, about $100 million remains readily available for border barrier spending, an administration official said.
Where will the rest come from?
The Trump administration plans to use the counterdrug account as a temporary way station for more than $2 billion in funds taken from unrelated military programs. The administration will first transfer the funds into the counterdrug account, and then treat them as money that can be used for border barriers.
But the Defense Department has not yet decided which other programs to drain of their funding.
One military official, speaking on the condition of anonymity to discuss internal deliberations, said the Pentagon had been scouring its $700 billion budget in search of accounts with unspent funds to target. For example, the official said, an Army personnel account designated for paying bonuses to new recruits appears to have excess money because the service has been falling short of its recruiting goals lately.
But reaching the total will require some painful decisions.
“All of this money has been assigned for other purposes,” Shanahan said, adding, “It really is a trade-off.”
Is it legal to transfer military funds to the counterdrug account?
A federal law, the Anti-Deficiency Act, generally makes it a crime for an official to spend money on something in excess of what Congress has appropriated for that purpose.
But the Trump administration says it can lawfully move other military funding into the Pentagon’s counterdrug account under “general transfer authority,” a power Congress has given to the defense secretary. This power gives Shanahan, under certain conditions, the flexibility to move up to $4 billion around from one purpose to another.
But there are certain limits. Among them, it can be used only on an item that is “higher priority” than its original purpose and meets a standard of “unforeseen military requirements” and “in no case where the item for which funds are requested has been denied by the Congress.” This raises the question of whether Trump’s desire to spend more on his wall than Congress appropriated qualifies under that standard.
Martin Lederman, a Georgetown University law professor who helped run the Justice Department’s Office of Legal Counsel during the Obama administration, said he had found no example of litigation in which a court had tested such “arcane language and conditions” in the transfer law, leaving few guideposts for how far the administration can stretch it.
Could the courts block it?
Maybe. A deluge of lawsuits are asking judges to block Trump’s executive actions on wall spending. A lawsuit filed by a coalition of 16 states, for example, includes the accusation that Trump exceeded his legal authority in seeking to divert the funding for the military counterdrug account to use on border barriers.
What about Congress?
The “general transfer authority” provision says Shanahan must notify Congress promptly of all such transfers. Another military official, speaking on the condition of anonymity, said the Defense Department had scheduled a meeting of senior officials Thursday to iron out where redirected funds will be taken from, and planned to take those recommendations to the appropriations committees in Congress on Friday.
As a matter of constitutional law, if Congress has given the executive branch the authority to redirect funds, the appropriations committees cannot veto any particular exercise of that power. But as a matter of political reality, executive branch officials generally heed committee objections. The idea is to preserve a harmonious relationship with appropriators who could slash their next budget.
Especially because the House is controlled by Democrats, this norm appears likely to put the Pentagon in a bind. The House Appropriations Committee chairwoman, Rep. Nita Lowey, D-N.Y., has expressed deep skepticism about Trump’s plan, blasting him for ignoring “Congress’ refusal to fund his wasteful border wall,” which she called “a political vanity project.”
The Defense Department declined to address what it will do if congressional appropriators tell it not to move the money.