Emergency Declaration For Border Wall Could Tap Military Funds

Feb 14, 2019
Originally published on February 15, 2019 1:57 pm

After weeks of brandishing the threat of invoking a national emergency, President Trump is going ahead and declaring one.

"President Trump will sign the government funding bill," White House spokeswoman Sarah Sanders said Thursday afternoon, "and as he has stated before, he will also take other executive action — including a national emergency — to ensure we stop the national security and humanitarian crisis at the border."

Trump had earlier declared his unhappiness with the $1.375 billion that Congress is providing for a border barrier in a spending bill that keeps the government operating through the end of September. That outlay is less than a quarter of the $5.7 billion Trump had sought for a wall along the border with Mexico.

By declaring a national emergency at the same time he signs the legislation keeping the government open, Trump is aiming to amass additional funding for that wall from what acting White House chief of staff Mick Mulvaney has called "pots of money" in federal agencies.

A possible source for fattening border wall funding would be the billions of dollars appropriated this year for military construction. A 1982 law empowers the secretary of defense to redirect military construction funds during a presidentially declared national emergency.

But tapping money meant for building military housing or improving safety on bases could be problematic.

"You can use military construction funding under a national emergency, but it actually stipulates that that has to be for a military purpose, and it would be hard to justify this, I think, is a military purpose," says military budget expert Todd Harrison of the Center for Strategic and International Studies. "So if [Trump] did that, he's likely to end up with a court challenge, which could forestall the whole thing for months or even years."

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We now know the next sentence of the story of President Trump's drive for a border wall. Senate Republican Leader Mitch McConnell said yesterday the president will sign a border security measure that does not include funding for the wall that the president demanded. Then McConnell said this.


MITCH MCCONNELL: He will also be issuing a national emergency declaration at the same time. And I've indicated to him that I'm going to support the national emergency declaration.

INSKEEP: Now let's write out some more of the story. NPR national security correspondent David Welna joins us.

Hi there, David.

DAVID WELNA, BYLINE: Good morning, Steve.

INSKEEP: How does the president claim power to spend money that Congress just now refused to give him?

WELNA: Well, you know, a national emergency power is something that's been exercised by American presidents ever since George Washington in August of 1794. He mobilized a militia against what was expected to be a rebellion against whiskey taxes. I should note that there's nothing stopping any president from doing that because Congress has, actually, never defined what constitutes a national emergency. So Trump is able to activate any number of more than 400 laws that Congress has passed over the years to allow a fast response to an emergency. President Bush, for example, declared a national emergency after the 9/11 attacks. And Trump will have to notify Congress exactly which of these emergency statutes he plans to use to get the money that Congress would not give him in the bill that he's expected to sign.

INSKEEP: Although, as you have noted, it's unusual - to say the least - that a president would use an emergency statute to, basically, do an appropriation of money that Congress has just refused. So what pots of money will the president draw on if he goes forward this way?

WELNA: Well, it's most certainly not pots of money coming from Mexico to pay for a wall, despite all the president's earlier promises. These pots of money are all funding that Congress has already approved for other purposes. And mostly, they seem to be associated with the Department of Defense, which gets about two-thirds of the money that Congress approves each year. We don't have specifics yet from the White House. But it appears that Trump is going to try to raid other accounts to add more than $6 billion to the $1.375 billion that Congress has approved for a border barrier for a total of $8 billion. That's a lot more than the $5.7 billion he'd been seeking.

And most of that money - $3.5 billion - is expected to come from the Pentagon's military construction budget. And that's likely to anger a lot of defense hawks on both sides of the aisle because that money was all meant to be spent improving military bases. There's also about $2.5 billion in the Defense Department's drug interdiction program that Trump is expected to tap, as well as another $600 million from Treasury's drug forfeiture fund.

INSKEEP: OK. So we've been hearing this morning that a lot of lawmakers - mostly Democrats but some Republicans - are really unhappy about this. The question comes as to whether Congress would really push back. I know that the House has talked of suing. The House could vote to stop this state of emergency. But would the Senate, controlled by Republicans, ever vote on such a thing?

WELNA: Well, under that 1976 National Emergencies Act, Congress can pass a joint resolution that would effectively nullify a national emergency decree. And members of the House - Democrats in the House say they are planning to do exactly that. And that's something that if the House passes it, the Senate has to vote on it. So Mitch McConnell, the Republican leader, would have to hold a vote. And there are already several Republicans who have expressed displeasure with a national emergency decree. If they joined Democrats, that could pass in the Senate as well. Then it would have to go to President Trump for his signature. And that may be when he exercises his veto power for the first time.


WELNA: Two-thirds majorities would be needed to override that, which is not probable.

INSKEEP: NPR's David Welna, thanks so much.

WELNA: You're welcome. Transcript provided by NPR, Copyright NPR.