In the face of Congress failing – for two years running – to fund the border wall at levels President Trump would like, he has recently started talking about invoking extraordinary legal authorities to increase the spending and construction happening the border. As readers of the Wastebasket know, we have a pretty clear opinion about the lack of wisdom of throwing $5B or $25B at constructing physical barriers on the Southern border. We still hold that view. But the talk of extraordinary authorities for a spending dispute surpasses stupidity and waste into dodgy constitutional precedent.

The Objection, And The Purse Strings

Why are we so up in arms about this possibility? As Congress so frequently points out, the Constitution gives Congress the power of the purse. Strict constructionists and School House Rock aficionados all know that Article One, Section 9, Clause 7 of the Constitution stipulates: “No money shall be drawn from the Treasury, but in Consequence Of Appropriations made by Law.” The only branch of government that enacts laws is Congress. In practical terms the budget process is that the president submits a budget request, which lawmakers debate and then (hopefully) pass legislation that appropriates funds for government. The president may veto the legislation, and Congress, in turn, can override that veto with a two-thirds vote in each chamber.

Clearly, this year (and many past years) budgeting has not happened as smoothly as the founders might have imagined. At the moment, nine Departments and many agencies are closed because they have not had their FY 2019 (which started October 1) funds appropriated. The Department of Homeland Security (DHS) is one of the  shuttered departments. When the president submitted his FY 2019 budget request for DHS it included $1.6 billion for 65 new miles of border wall. More recently, the president has insisted he wants more than $5 billion in the current fiscal year. But it is worth noting that the president did not submit a budget amendment with an accompanying justification to the congressional Appropriations Committees. Lawmakers don’t know what that money is supposed to buy, where, and when. Simply yelling “border security” or “border wall” isn’t enough.

In December, the Senate passed a bill to extend government funding through February 8 for the departments and agencies that lacked full year spending bills. After initially indicating he would sign that package, President Trump then turned back to his demand for $5 billion for a wall. House Republicans acquiesced to the demand and passed an extension with the nebulous funding for a wall, Senate Democrats blocked it and the shutdown began. The day they were sworn in, the new House Democratic majority passed spending bills that would fund the rest of government and extend funding to DHS until early February while the border was debated. Senate Majority Leader McConnell (R-KY) has stated the chamber won’t take up the bills unless President Trump agrees to sign it. And he hasn’t.

The Antideficiency Act

The first place the president looked to circumvent Congress was the Pentagon, which along with several other departments is funded. But there is a law that prohibits the president from simply moving money from one program to another: from the shadows of “Principles of Federal Appropriations Law,” we present the Antideficiency Act.

This statute prohibits money appropriated by Congress from being spent in advance or in excess of a congressional appropriation. Also, the act prohibits “…involving the government in any obligation to pay money before funds have been appropriated for that purpose…” (emphasis added.) In effect this means funds may only be used to pay for the item or action for which the money was specifically appropriated.

The Fiscal Year 2019 Department of Defense Appropriations Act has already been signed into law (Public Law 115-245), and none of the $674.4 billion in that bill was labeled for construction of a border wall. The president using emergency authorities to use DoD funds for constructing a border wall will almost certainly trigger litigation over the extent of his authority. He can’t just take money from the Pentagon and use it to pay for the wall.

Define Emergency. (Hint: It’s Not A Wall.)

So now we find the president talking about emergency authorities. Let’s start with the obvious: it is not actually an emergency. There is wide disagreement between the parties about the scale of the problem and the right solution. Yes, we need additional investments in border security. But the fact is that the president can’t get the votes he needs to get the type and scale of security he wants does not constitute an emergency. The president can’t seize a Congressional power just because he feels like it.

That said, the president has the ability to invoke emergency powers under at least three statutes: 50 USC 1631 “Declaration of national emergency by Executive order”, 10 USC 284 “Support for counterdrug activities…”, and 10 USC 2808 “Construction authority in the event of a declaration of war or national emergency.”

It is unclear if declaring a national emergency under 50 USC 1631 would allow the administration to waive the Antideficiency Act and this may be an issue that ends up in court. However, invoking construction authority under 10 USC 2808 would almost certainly result in legal action. The statutory language notes the Secretary of Defense may act, “without regard to any other provision of law” (including, presumably, the Antideficiency Act). However, the underlying assumption of the statute is that the extraordinary authority both “requires the use of the armed forces” and will be used to undertake “military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces.” (Emphasis added.)

The current roughly 650 miles of border barriers were built without the military. The military is barred from playing primary law enforcement role (such as enforcing immigration laws) so it seems a bridge too far to claim that this construction is “necessary to support such use of the armed forces.” That language suggests such projects as barracks, dining halls, force protection projects, and the like.

Another avenue would be to go after U.S. Army Corps of Engineers funding. 33 USC 2293 “Reprogramming during national emergencies” allows the Secretary stop funding any “Army civil works that he deems not essential to the national defense” and use to those funds to construct “civil defense projects that are essential to the national defense” in the event of a presidentially declared national emergency. Guess who got more than $17 billion in emergency supplemental funds last year? Yup, the Corps of Engineers. Of course that was largely to respond to Hurricanes Harvey, Irma, and Maria. So, Texas would be faced with having funds that were intended to protect them from future storms like Harvey, Ike, and Rita being spent on a sugar pill of a wall on our southern border.

Congress Has The Final Say

So it all comes back to the central idea in the Constitution. As we said, there are important border security needs that must be met. But Congress has final authority on spending. And to effectively govern the country, Congress and the executive branch need to work together.