After causing the longest partial government shutdown in U.S. history in a failed attempt to obtain nearly $6 billion in border wall funding, President Donald Trump now plans to defy the will of Congress by illegally siphoning billions of dollars from the nation’s defense budget. On February 15, Trump declared a national emergency at the U.S.-Mexico border in order to sidestep Congress and invoke unique executive authority. But during the announcement, Trump himself admitted that his decision was motivated more by convenience than necessity, outing the emergency declaration for what it really is: a rogue attempt to actualize an unfulfilled campaign promise.
“I could do the wall over a longer period of time, I didn’t need to do this, but I’d rather do it much faster.”
– President Donald Trump, February 15, 2019
Trump’s proposed border wall—which his own chief of staff referred to as “absurd and almost childish”—offers an ineffective solution to a nonexistent crisis. Apprehensions at the U.S.-Mexico border have decreased by nearly 75 percent since 2000, and those entering the United States are primarily children and families fleeing violence and seeking asylum. Despite Trump’s attempts to provoke fear about broader security concerns, his administration has found “no credible evidence” of terrorist groups entering the United States via the southern border. Moreover, U.S. law enforcement reports that only a small fraction of illegal drug seizures occur where the border wall would be constructed, as the vast majority of drugs enter the United States through ports of entry. The statute that the White House has cited in an attempt to co-opt billions in defense appropriations for this so-called national emergency requires funds be used in support of the military during a national emergency. In the absence of a legitimate crisis, however, the U.S. Department of Defense (DOD) has asked border officials to justify the reallocation of funds.
The United States’ defense budget reflects the military’s articulated needs to maintain its capability to monitor and manage national security threats. Trump’s diversion of these funds constitutes nothing less than a dereliction of his duty as commander in chief.
“[S]ome of the generals think that [a border wall] is more important. … 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 it didn’t sound too important to me.”
– President Donald Trump, February 15, 2019
To supplement the $1.375 billion in border barriers that Congress approved on February 13, Trump plans to divert funds from the following sources, in the following order:
- Approximately $601 million from the Treasury Forfeiture Fund
- Up to $2.5 billion in DOD funding reprogrammed to the department’s Drug Interdiction and Counterdrug Activities account
- $3.6 billion in unobligated funds from the DOD’s military construction budget, including funds from previous years
The Treasury Forfeiture Fund
This fund consists of asset forfeitures that were collected by the U.S. Department of the Treasury and the U.S. Department of Homeland Security. The Treasury Forfeiture Fund is intended for legitimate law enforcement purposes such as enhancing the government’s capability to disrupt criminal financial enterprises, including money laundering to support illegal drug activity. As noted above, a border wall would do very little to impede drug cartels, terrorist organizations, or embezzlement, so diverting funds from ongoing law enforcement activities to its construction would undermine this account’s mission.
The DOD’s counterdrug account
The DOD’s Drug Interdiction and Counterdrug Activities appropriation is used to fund federal, state, and local law enforcement investigations into drug trafficking and gang activity. Because the DOD’s counterdrug account does not currently contain $2.5 billion—reports suggest its balance may be as low as $85 million—the department plans to transfer funding from unrelated programs into this account in order to access funds that are otherwise ineligible for border wall construction. The DOD has not yet provided information on what types of programs could be affected by these transfers. Any funds that are diverted into the counterdrug account must be transferred by September 30, 2019—the end of the current fiscal year. In utilizing general transfer authority, the DOD must report any actions to congressional appropriations committees.
Although the use of this funding does not require emergency authority, there are restrictions on its application to Trump’s border wall. For example, the DOD’s counterdrug account:
- Must be used on the “construction of roads and fences and installation of lighting to block drug smuggling corridors”
- Must be used on an item of “higher priority” than its original purpose in order to meet “unforeseen military requirements”
- Cannot fulfill a request “that has been denied authorization by Congress”
Given the absence of a legitimate military crisis and Congress’ explicit consent for only $1.375 billion in barrier funding, the legality of funneling additional wall funds through this account seems dubious.
The DOD’s military construction budget
Trump’s willingness to circumvent Congress and defund military projects to pay for his border wall confirms what his previous actions have hinted: Refusing to accept legislative defeat and constitutional limitations on his authority is more important to Trump than preserving the well-being of service members, their families, and U.S. national security. Congress authorized military construction dollars for scheduled projects, including critical infrastructure improvements such as removing lead and mold from military housing, improving the safety of overseas bases, and upgrading military hospitals and schools—not a border wall. Unlike the Treasury Forfeiture Fund and the counterdrug account, the use of military construction funding for the border wall requires the exercise of emergency authority.
“I would say it’s better for the middle school kids in Kentucky to have a secure border … We’ll get them the school they need, but right now we’ve got a national emergency on our hands.”
– Sen. Lindsey Graham (R-SC), February 17, 2019
Table 1* shows the broad range of military installations across the country that have projects at risk of being illegally defunded for Trump’s unnecessary and immoral border wall. This list does not include projects that could be affected at U.S. military bases overseas.
If the House passes a disapproval resolution to terminate Trump’s manufactured emergency declaration, the Senate would then have 18 days to determine whether to allow Trump to subvert the constitutional authority of a coequal branch and illegally siphon billions of dollars from the nation’s defense budget for an unnecessary border wall. With critical military construction projects threatened—including missile defense infrastructure, Navy SEAL training facilities, renovations at Walter Reed National Military Medical Center, and construction of National Guard Readiness Centers—a Senate vote against the House’s disapproval resolution would send a message to the nation’s service members that border wall construction is more urgent than maintaining military readiness.
Saharra Griffin is a research assistant for the Executive Office at the Center for American Progress.
*Author’s note: To view Table 1, please click here.