Trump declares emergency on southern border, opens battle over use of military funds to build wall
By CLAUDIA GRISALES | STARS AND STRIPES Published: February 15, 2019
WASHINGTON – President Donald Trump on Friday declared a national emergency along the U.S-Mexico border, part of an overall effort that uses roughly $6 billion in military funds and personnel to build a wall to curtail illegal immigration.
Trump plans to pull $3.6 billion from military construction funds by evoking the National Emergencies Act and another $2.5 billion from the Defense Department’s drug interdiction program through a presidential executive order, senior White House officials said earlier Friday. These funds are part of an overall plan announced Friday to use $8 billion, which includes $1.375 billion in a new government appropriations package that he is scheduled to sign, to build a southern border wall. The targeted funds also include another $600 million from Treasury Department forfeiture funds.
“One of the things we have to do and I said we would do is border security,” Trump said in his opening remarks from the White House Rose Garden. “I’m going to be signing a national emergency.”
The comments were part of a freewheeling speech Friday in which Trump talked about China, tariffs, Kim Jong Un, crowds at a recent rally in Texas, unconfirmed reports of women abused crossing the border and Ann Coulter.
The president said Congress “skimped” by approving only $1.375 billion in wall funding, so he was forced to utilize other options. Trump also claimed military generals told him the wall was a greater priority than other military construction projects.
“I was speaking to a couple of them, they think this is far more important than what they were going to use it for. I said what were you going to use it for, and I won’t go into details, but didn’t sound too important to me,” he said.
Trump also alluded to the lawsuits that will follow Friday’s declaration.
“We will have a national emergency and then we will be sued,” he said “We will probably get a bad ruling and then another bad ruling and then we’ll end up in the Supreme Court.”
The political and legal fights to come could delay any funds from being used for a border wall for months or years, leaving uncertainty when or if the military will be involved in the wall’s construction, some experts contend.
“It’s not like a wall is going to go up tomorrow. It’s going to take months or years to see the kinds of barriers” the Trump administration has proposed, said Mark Cancian, a senior adviser with the Washington think tank Center for Strategic and International Studies. “This is long term, this is not a short-term thing.”
In late January, military planners had met daily at the Pentagon about the border situation and drew up plans in case the president issued a national emergency declaration as he has threatened, according to a defense official who spoke on condition of anonymity to discuss internal planning.
'Cutting a lot of projects'
Trump had publicly threatened a national emergency for weeks after repeated talks with congressional Democrats failed to produce a deal for $5.7 billion that the president wanted to fund a border wall. Most recently, the political standstill deteriorated into the longest federal government shutdown in history that left 25 percent of the government virtually closed and 800,000 federal workers and servicemembers – including 42,000 active-duty Coast Guard members and more than 150,000 veterans in civilian posts – furloughed or working without pay for 35 days. The shutdown ended with Trump signing a three-week temporary funding measure to reopen the government that was slated to expire Friday.
On Thursday evening, Congress approved an overall funding deal that would direct the $1.375 billion towards the wall, short of Trump’s demanded amount. In the 2018 fiscal year budget, Congress also allocated $1.3 billion for border security efforts.
“Trump could claim credit for getting [money] for the wall” if he is successful with these additional efforts, said Molly Reynolds, a governance studies fellow at the Brookings Institution, a liberal-leaning Washington think tank.
The Pentagon’s drug interdiction program has an annual budget of about $1 billion and covers a wide variety of counter-drug activities, including detection and monitoring, international support, intelligence and technology and domestic support, which includes a National Guard counter-drug program, Cancian said. The program, started in 1989, is largely funneled to activities along the southwest border.
“That will disrupt a lot of counter drug and drug interdiction activities that had been going on for decades and thus will be quite controversial,” Cancian said. “There are school counter-drug programs run by the National Guard, for example, that will probably have to stop.”
Now provisions of federal law used to declare the national emergency will be scrutinized.
A provision of Title 10 of the U.S. Code, Section 2808, states a presidential declaration under the National Emergencies Act of 1976 empowers the undertaking and funding of military construction projects “that are necessary to support such use of the armed forces.” The act has been used 58 times since its inception. Today, 31 national emergencies are active.
But declaring a national emergency and using military construction money could affect military projects.
The most recent appropriation for military construction is about $10 billion, Cancian said. If more than $500 million is pulled from that budget, it could delay significant projects for the Pentagon, he said.
The Pentagon had identified in January more than $3 billion from military construction funding that could be diverted to build the wall, according to the same defense official who spoke on condition of anonymity.
“You are cutting a lot of projects the military was planning on, it means there are facilities, barracks, clinics and office buildings, you name it, they won’t be building,” Cancian said.
One such project could be the European Deterrence Initiative, an $800 million budget that provides U.S. allies with defense support against Russia, the Washington Post reported earlier this month. Staging areas, refueling stations and other NATO projects could be halted in lieu of border wall funding, the Post also reported.
Military construction funds are also used for improvements to housing, roads, hospitals and other facilities, and can be used to eliminate mold or other hazardous problems at military installations in congressional districts across the nation and around the globe, The Associated Press reported.
As an example, congressional aides told the AP that there is funding for a medical facility at a U.S. base in Germany that has been partially constructed. If those funds were used, the medical center could be left half built.
And while the president can decide to use military construction funds, it will be up to the Defense Department to determine which specific projects would lose their money, the aides told the AP.
But White House officials said Friday that they are still working to determine from which construction projects the money will be taken.
“We would be looking at lower priority military construction projects. We would be looking at ones that are to fix or repair particular facilities that might be able to wait a couple of months into next year,” a senior White House official said. “So we’re going through a filter to ensure that nothing impacts lethality, readiness on the part of our military construction budget. Which is a budget that’s substantially larger than $3.6 billion.”
However, additional obstacles remain. Cancian, other experts and Democrats on Capitol Hill have said Trump’s declaration is poised to be met with political and legal fights.
It could take months or years of planning before anyone even puts a shovel in the ground, Cancian said. Then the plan could also face legal fights related to environmental concerns, such as the possibility of endangered animals along construction sites or private property challenges of eminent domain.
“They will certainly be challenged in the court and it’s not impossible that some court would issue an injunction that prevents them from moving forward,” Cancian said.
New fight on Capitol Hill
On Friday, Senate Minority Leader Chuck Schumer and House Speaker Nancy Pelosi issued a joint statement rejecting Trump’s claims of a national emergency.
“The president’s unlawful declaration over a crisis that does not exist does great violence to our Constitution and makes America less safe, stealing from urgently needed defense funds for the security of our military and our nation,” Schumer, D-N.Y., and Pelosi, D-Calif., said in the prepared statement. “This is plainly a power grab by a disappointed president, who has gone outside the bounds of the law to try to get what he failed to achieve in the constitutional legislative process.”
Schumer and Pelosi said Trump has clearly violated Congress’ “exclusive power of the purse,” enshrined in the Constitution, and they will fight through the courts to ensure that power remains intact “using every remedy available.” They urged Republicans to join them in their fight to defend the Constitution.
“The president is not above the law,” they said. “The Congress cannot let the president shred the Constitution.”
Other Hill Democrats also expressed opposition to the move. For example, Sen. Tim Kaine, D-Va., a member of the Senate Armed Services Committee, issued a letter Friday to Defense Secretary Pat Shanahan requesting a detailed list of all the military construction projects that could be impacted by the move. Kaine noted in his letter that Defense Department officials testified last year that they had a maintenance backlog of more than $116 billion and Trump’s move could divert one-third of the military’s construction project funds.
Republicans on Friday were split on the move. While some key Republican members on the Senate and House Armed Services Committees have expressed opposition to the move, other party members who have rallied in favor of it in recent weeks expressed support for the declaration. Among them, Sen. Lindsey Graham, R-S.C., House Minority Leader Kevin McCarthy, R-Calif., and Rep. Mark Meadows, R-N.C., chairman of the conservative House Freedom Caucus.
However, Sen. Jim Inhofe, R-Okla., chairman of the Senate Armed Services Committee, said Tuesday that he was opposed to the move to use military construction funds for a border wall, but he was open to Trump pulling that money from the Army Corps of Engineers budget.
“If it has to be that way leave (military construction funds) alone,” Inhofe told reporters Tuesday during a breakfast meeting.
The White House had originally considered using Provision 33 of the U.S. code, which would allow money to be withdrawn from civil works funds, the budget used by the U.S. Army Corps of Engineers to install barriers and other construction projects in places hard hit by natural disasters, such as Puerto Rico or Houston. About $5 billion to $6 billion was appropriated for the Army Corps of Engineers in the most recent fiscal year, Cancian said.
However, senior administration officials on Friday said they would not be using those funds for the wall.
Rhode Island Sen. Jack Reed, ranking Democrat for the Senate Armed Services Committee, has said there’s bipartisan opposition to “treating the Pentagon like a campaign piggy bank.” He has said he would work with colleagues on both sides of the aisle to block any attempt to redirect money from the troops to the wall, as the move could result in the cancellation of unknown number of military construction projects.
The United States isn’t at war with Mexico, and the proposed wall has no core Pentagon function, Reed has said.
“President Trump should stop trying to use our military as a prop,” Reed said last month in warning against the move. “The Defense Department produced a national security strategy for the president that in no way backed up his claim” that the military wants the wall to happen.
Jens David Ohlin, professor and vice dean of Cornell Law School in New York, has said Trump could face a series of lawsuits.
“This move would be sure to result in several legal challenges,” Ohlin said. “First of all, the statute only applies to military construction projects that are necessary to ‘support’ the armed forces. In contrast, a border wall is neither a military construction project nor is it necessary to ‘support’ the armed forces.”
Trump’s plan also could face hearings on Capitol Hill.
“I would expect House Democrats would have hearings on the legality of Trump using his national emergency powers in that way,” Reynolds said.
House Republicans have also voiced concerns.
“I encourage the President not to divert significant Department of Defense funding for border security. Doing so would have detrimental consequences for our troops as military infrastructure was one of the accounts most deprived during the Obama-era defense cuts,” Texas Rep. Mac Thornberry, the former chairman and now ranking Republican for the House Armed Services Committee, said Thursday. “And it would undercut one of the most significant accomplishments of the last two years – beginning to repair and rebuild our military.”
Rep. Adam Smith, D-Wash., the committee's chairman, has said Trump will be “wide open to a court challenge.”
“This is as clear a statement as any that President Trump values the construction of his wall over military readiness and support for our troops and their families,” Smith said.
The comments signal solidarity between both parties in the top ranks for the House panel. Smith and Thornberry have also said new legislation could thwart a reprogramming of defense and other spending to build the wall.
Even without a wall, the Pentagon has contributed significant resources to the southern border.
“President Trump’s midterm troop deployment stunt will cost [the Defense Department] and taxpayers an estimated $132 million and counting,” Reed said recently. “That money could have been better spent on actual border security rather than on campaign season border security theater.”
The Pentagon said this month that it would send an additional 3,750 active-duty troops to the U.S. border with Mexico, bringing the total number of troops deployed there to about 4,350. In addition, the National Guard has about 2,270 servicemembers along the border on a separate mission. However, that number is expected to decrease as the governors of New Mexico and California announced they are withdrawing National Guard in their state. Both called the deployment politically motivated.
In fiscal year 2018, the Defense Department spent $235 million on the two missions, Navy Vice Adm. Michael Gilday, director of operations for the Pentagon’s Joint Staff, said during testimony on Capitol Hill. The Guard’s mission is expected to cost about $448 million in 2019. Estimates for the ongoing cost of active-duty troops was not available.
While the National Guard’s mission has been largely a behind-the-scenes role to support Border Patrol agents, active-duty servicemembers have conducted a wide-range of duties.
Most visibly, military engineers have placed about 70 miles of temporary barriers along the border using coiled razor wire, according to data provided by U.S. Northern Command. By September, they’ll have placed another 150 miles of wire barriers between ports of entry. Military police units have conducted more than 10,000 hours of unit training and combined rehearsals with Border Patrol agents in California, Arizona and Texas. Military rotary-wing aviators have flown more than 740 hours.
President Donald Trump speaks during an event in the Rose Garden at the White House to declare a national emergency in order to build a wall along the southern border, Friday, Feb. 15, 2019, in Washington.