The transfer could spur Congress to cut off the Homeland Security secretary's spending flexibility, however, which could have long-term impact.
The Trump administration’s decision to transfer $155 million to immigration enforcement activities out of a fund set aside for disaster response has drawn scorn and threats of retribution from members of Congress, though former top officials said the move is unlikely to affect the government’s ability to respond to hurricanes in the immediate future.
The Homeland Security Department finalized its plan this week to reprogram a total of $271 million away from various accounts to expand its capacity to detain immigrants and for additional courts to more quickly hear asylum cases. The move drew swift rebuke from Democrats in Congress, who said the $155 million transfer away from the Federal Emergency Management Agency’s Disaster Relief Fund as Hurricane Dorian barrels toward Florida is setting FEMA up for catastrophic failure. They also suggested the department was flouting the will of Congress without demonstrating that the need for reprogramming constituted an emergency, as required by law.
Since Congress created Homeland Security in 2002, lawmakers have allowed the secretary to transfer a certain percentage of the department's annual appropriations to respond to situations that threaten human life or property. While the Trump administration has argued that the surge of migrants at the southwest border has created such a crisis, Democrats said the department is simply augmenting its normal funding.
“Once again, DHS has ignored the negotiated agreement with Congress by vastly exceeding the amount appropriated for immigration enforcement and removal operations,” Rep. Lucille Roybal-Allard, D-Calif., who chairs the House Appropriations Committee's panel on homeland security, wrote in a letter to acting DHS Secretary Kevin McAleenan. “Furthermore, the department’s transfer and reprogramming authority is permitted only ‘in extraordinary circumstances that imminently threaten the safety of human life or the protection of property.’ The department has not shown that these ‘extraordinary circumstances’ exist.”
The administration said it would specifically use the FEMA funds to operate temporary immigration courts along the southwest border. Judges placed there will hear cases for asylum seekers the department has arranged to stay in Mexico until they could appear before a judge. Royball-Allard said this further violated spending law as it resulted in a transfer of Homeland Security funds to an operation typically funded through the Justice Department.
By working around Congress, the congresswoman said, Homeland Security had placed the “renewal of that [reprogramming] authority in jeopardy.” Rep. Nita Lowey, D-N.Y., who chairs the full committee, said congressional Democrats will now fight “for stronger restrictions that will prevent these abuses in the future,” while accusing the administration of a “brazen theft of disaster relief funds.”
Rep. Bennie Thompson, D-Miss., who chairs the House Homeland Security Committee, also accused the White House and the department of circumventing the law.
“The administration is playing with fire, all in the name of locking up families and children and playing to the president's base leading up to an election year,” Thompson said. “Taking money away from TSA and from FEMA in the middle of hurricane season could have deadly consequences.”
Craig Fugate, who served as FEMA administrator throughout the Obama administration, said some of that reaction is overblown. He noted that with Hurricane Dorian approaching, the timing was unfortunate but unlikely to disrupt the agency’s work.
“The optics are bad, but it doesn’t really affect operations,” Fugate said. He added, however, that the move was still ill-advised as administrations tend to see the relief fund as money just “sitting there,” particularly between disasters. “I think it’s a bad idea. I wouldn’t do it.”
The former administrator noted if Dorian or a future storm this season turns into a catastrophic event, the reprogramming could lead to FEMA more quickly depleting its reserves and subsequently cutting of all non-essential funding. The agency would then have to curtail ongoing work for previous disasters and projects that had not yet begun.
A second former top FEMA official said the transfer amounted to a small drop out of the agency’s disaster relief bucket.
“There’s still plenty of money to work with,” the former official said. The official added, however, that FEMA can burn through $200 million per day when responding to disasters so the full impact of the money transfer will depend on “what happens and what the impacts are from future hurricanes.”
At this point in the hurricane season, FEMA has already completed it preparations so its distribution centers are fully supplied with water and other supplies, further mitigating the risks of DHS’ decision. The department also may feel encouraged to tap the disaster fund for other needs knowing that historically, Congress acts quickly to refill it when the coffers run low.
“If that fund runs out, most likely Congress will not make states suffer because of the decision the secretary made,” Fugate said. “They’ll put money back in.”
The former administrator suggested the U.S. Coast Guard, from which Homeland Security reprogrammed $24.4 million to boost the Immigration and Customs Enforcement’s detention capacity and removal efforts, will likely feel the pains of that transfer more acutely.
Still, some observers cautioned that FEMA will feel its pursestrings tighten down the road.
"While the operational impact of this recent reprogramming may be minimal, any funds siphoned from the [Disaster Relief Fund] reduce those funds immediately available to fight wildland fires, preposition equipment for hurricanes, and assist communities across the nation in advance of a known disaster," the National Emergency Management Association and the International Association of Emergency Managers said in a joint statement. The groups added the reprogramming "risks the ability for emergency managers to effectively respond to unforeseen events and unnecessarily circumvents the regular Appropriations process and full consideration by Congress."
Earlier this year, Congress approved an emergency supplemental spending package to help the administration address the migrant surge at the border, including $1.3 billion for Homeland Security. In a statement on the reprogramming, the department noted that measure did not provide for any additional detention space for single adults.
“This realignment of resources allows DHS to address ongoing border emergency crisis by alleviating the surge along the nation’s southwest border while minimizing the risk to overall DHS mission performance,” the department said.
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