A Border Patrol agent approaches border wall prototypes in San Diego, Calif., earlier this month.

A Border Patrol agent approaches border wall prototypes in San Diego, Calif., earlier this month. Gregory Bull/AP

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Trump's Declaration of Emergency Authority to Redirect Spending Will Bring Complex Challenges

His $8 billion shuffle to build a border wall is unprecedented, maybe illegal in some parts.

President Trump on Friday finally put specific numbers on his long-threatened plan to find new “pots” of money to build his version of a southern border wall that Congress has only partly funded.

Defining those “pots” as the fight over his controversial plan unfolds will rope in not only politicians and lawyers, but, by necessity, budgetary technocrats.

Trump’s Rose Garden appearance announcing his declaration of a national emergency at the border came with release of a somewhat detailed plan to scrape together $8.1 billion from already appropriated funding from an array of agencies. That sum would include $1.375 billion for some 55 miles of border barrier that is in the continuing resolution he signed on Friday to avert a government shutdown.

Using the budgetary term “reprogrammed,” the White House said it is allocating about $601 million from the Treasury Forfeiture Fund, up to $2.5 billion from Defense Department support for counterdrug activities, and up to $3.6 billion from Defense military construction projects to cover the rest.

In addition, Trump is tasking the Pentagon, the Homeland Security Department and the Army Corps of Engineers to “create a list of segments and a work plan for the remainder” of fiscal 2019 and beyond, that could include a new levee wall, new and replacement primary pedestrian barrier, new vehicle-to-pedestrian barrier and new secondary barrier. “These funding sources will be used sequentially and as needed,” a White House fact sheet said.

Because Trump had long-promised his political followers that he would fund a wall, other funding ideas for weeks had been offered by commentators, including moving disaster relief money earmarked for Texas and Puerto Rico, selling Agriculture Department loans to investors, and waiting for the end of the fiscal year and forcing a “sequester” on Congress if the border wall money isn’t appropriated.

But the plan Trump actually announced—coupled as it was with his disputatious use of the emergency declaration power—contained plenty of fodder for critics.

House Budget Committee Chairman Rep. John Yarmouth, D-Ky., called the plan “a slush fund for a floundering campaign promise. The House has not ceded, and will not cede, our constitutional power of the purse.”

House Appropriations Chairman Rep. Nita Lowey, D-N.Y., added: “The national emergency declaration will rob critical military construction projects of funding, threatening national security to prop up a political vanity project. In the coming days, we will carefully study the details of President Trump’s announcement and determine how best to challenge it, both legislatively and legally.”

House Armed Services Readiness Subcommittee Chairman Rep. John Garamendi, D-Calif., cited specific military construction projects needed in Alaska and the Gulf that Congress had recently funded, promising a huge fight with Trump to protect them.

Retired Gen. Barry McCaffery told the same MSNBC audience that that “military construction projects take two to five years of political negotiations,” calling Trump’s move “utter nonsense” that is “inconsistent with the government of the United States.”

Sam Berger, an attorney at the Office of Management and Budget during the Obama administration, said: “Trump used to say Mexico was paying for the wall, now U.S. troops are paying. It’s hard to imagine the Defense Department is happy, having put together a carefully crafted budget just so the president could waste billions on a campaign backdrop.”

Berger, now with the Center for American Progress, said Trump does have authority to move some monies—within limits. The Treasury Forfeiture Fund monies can be transferred to other agencies for law enforcement, he noted. (Its website cites entities such as the financial Crimes Enforcement Network, Federal Law Enforcement Training Center, and Tax and Trade Bureau.) “The drug interdiction program allows DoD to build fences in drug-smuggling corridors,” he said.

Section 8005 of the most recent Defense Appropriations bill allows up to $4 billion to be moved around in the defense operating budget, Berger said. With the approval of OMB, he said, the Defense secretary can do it but has to notify Congress promptly. Under the reporting requirements, Berger said, “Congress can’t say no, but if it tells the agency it doesn’t like what it’s doing, Congress can reflect those concerns in future appropriations.”

A recent Congressional Research Service report addressing reprogramming during national emergencies said the president can require the armed services to “terminate or defer the construction, operation, maintenance, or repair of any Department of the Army civil works project that he deems not essential to the national defense.” The secretary, it added, “shall immediately notify the appropriate committees of Congress of any actions taken pursuant to the authorities provided by this section, and cease to exercise such authorities not later than 180 calendar days after the termination of the state of war or national emergency, whichever occurs later.”

Finally, whether Trump’s border wall funding plan violates the Anti-Deficiency Act will be a question for policing on a case-by-case basis by the Government Accountability Office. GAO’s specialist, managing associate general counsel Julia Matta, testified to Congress on Feb. 6 in the aftermath of the 35-day government shutdown on the few exceptions that allow agencies to spend monies Congress hasn’t specifically approved.

GAO also offers guidance and case law history on “reprogramming,” funding gaps and “transfers” in its “Principles of Federal Appropriations Law,” commonly known as the Red Book. “The shifting of funds from one of these appropriations to another is a transfer.  In contrast, a reprogramming is a shifting of funds from one purpose to another within a single appropriation,” it notes. “Though agencies generally have authority to reprogram funds, Congress may limit this authority.”

Two examples of shifts in funds that GAO rejected in the past include a case in 1992 when the United States Information Agency received two appropriations: one for salaries and expenses and another for radio construction, and used a surplus in one to replenish the other. In a case involving shifting of funds by the Commodity Futures Trading Commission, Congress required the agency to “notify the Senate and House Committees on Appropriations prior to obligating or expending funds through a reprogramming to undertake certain enumerated activities.”