LegiStorm

Summary:

The Department of Defense (DOD, or the Department) has played a prominent role in the Trump Administration's border security strategy because of controversies related to $13.3 billion in defense funding it has sought to use for border barrier construction projects not otherwise authorized by Congress. These defense funds would comprise a complex mix of DOD program savings and unobligated military construction funds from past years ($6.1 billion), as well as a request for new appropriations in FY2020 ($7.2 billion). An additional $2 billion in non-DOD appropriations are often cited as part of the Administration's overall border funding plan. These include $1.375 billion in previously enacted FY2019 Department of Homeland Security (DHS) appropriations, and $601 million in contributions from a Treasury Forfeiture Fund (TFF) that manages seized assets. Altogether, these defense and non-defense funds would total $15.3 billion, of which 87% would be DOD funds. President Donald Trump has consistently declared the deployment of fencing, walls, and other barriers along the U.S.-Mexico border a high priority, however, he has been unable to fully secure from Congress the total amount of funding he deems necessary for that purpose. On February 15, 2019, in part to gain access to such funding, the President declared a national emergency at the southern border that required use of the Armed Forces, an act that triggered statutes allowing the President to redirect national resources—including unobligated military construction funds—for purposes for which they were not originally appropriated by Congress. Concurrent with the declaration, the Administration released a fact sheet entitled, President Donald J. Trump's Border Security Victory (hereafter referred to as the border security factsheet) that described a plan for redirecting $6.1 billion in DOD funds to border barrier construction projects not authorized by Congress. An additional $601 million was included using TFFs. The plan invoked a mixture of emergency and nonemergency authorities that included: $2.5 billion in defense funds authorized by the (nonemergency) statute 10 U.S.C. 284 Support for counterdrug activities and activities to counter transnational organized crime; $3.6 billion in defense funds authorized by the emergency statute Title 10 U.S.C. 2808 Construction authority in the event of a declaration of war or national emergency; and $601 million in nondefense, nonemergency TFFs. Shortly after the release of the border security fact sheet, the DHS requested that DOD undertake 11 construction projects along the Southwest U.S.-Mexico border for execution under 10 U.S.C. 284 authority. Typically, such construction would be funded using congressionally provided appropriations from DHS's own budget. Nevertheless, citing the ongoing state of emergency, DOD agreed to undertake seven of the projects and, between March and May 2019, reprogrammed $2.5 billion in defense program savings over the objections of House congressional defense committees, a deviation from the Department's own regulations. Subsequent court injunctions temporarily prevented approximately half ($1.2 billion) of these appropriations from being fully obligated, and resulted in the suspension of contracts that had been quickly awarded following DOD's reprogramming actions. The U.S. Supreme Court lifted these injunctions on July 26, 2019, but there has been no final ruling in the case (Sierra Club v. Trump). It remains unclear how a potentially unfavorable ruling might affect construction completed during the ongoing litigation. In September, DOD officials stated that $1.9 billion of the 10 U.S.C. 284 funds have been obligated, with the remainder to be obligated by the end of the month. On September 3, 2019, the Secretary of Defense exercised his authority under the emergency statute 10 U.S.C. 2808 to defer approximately 127 authorized military construction projects ($3.6 billion) and redirect the funds to 11 border barrier projects identified by the DHS. Deferred military construction projects would be halted indefinitely (or terminated) unless Congress were to provide replenishing appropriations. Congressional critics of the Administration's border barrier funding plans have hesitated to reimburse DOD for transfer actions they opposed or expressly prohibited. Furthermore, in March 2019, as part of its annual budget submission to Congress, the Administration also requested an additional $7.2 billion in defense appropriations (not described by the February 2019 border security factsheet plan). DOD officials stated that half this amount ($3.6 billion) would be used to support new DHS border barrier projects which the Administration has not yet described. The other half ($3.6 billion) would replenish military construction projects deferred by DOD's earlier 10 U.S.C. 2808 transfer actions. There has been considerable congressional concern over the Administration's efforts to fund the construction of border barriers outside of the regular budgetary process. In broad terms, these concerns are related to the novel and unorthodox use of emergency authorities, and the possibility that the Administration's actions jeopardize congressional control of appropriations, thereby potentially violating the Constitution's separation of powers. At the interagency level, DOD's break from comity-based agreements with congressional defense committees on reprogramming actions has generated new legislative interest in limiting the Department's budgetary flexibility and applying sharper oversight. More narrowly, individual Members have voiced apprehensions that military construction projects in their states and districts have been jeopardized by DOD's emergency transfers. FY2020 defense authorization and appropriation bills currently under consideration (as of September 2019) include provisions that would constrain the Administration from fully executing its plan, though final versions have not yet been passed. In late July 2019, news outlets reported congressional leadership had come to an informal understanding as part of a settlement of the annual budget caps for FY2020 and FY2021 that would specifically prohibit legislative provisions limiting the use of transfer authority—a key part of the President's Border security factsheet plan—unless such language was adopted on a bipartisan basis. Ongoing litigation has generally slowed the execution of border barrier construction and imperiled large portions of the President's plan. Of the $6.7 billion in future DOD and Treasury Funds included in the border security factsheet, $2.1 billion (32%) has been obligated as of September 13, 2019. This includes $242 million in TFFs and $1.9 billion transferred from the defense Drug Interdiction and Counter-Drug Activities account.