The White House is firming up plans to redirect unspent federal dollars as a way of funding President Donald Trump’s border wall without taking the dramatic step of invoking a national emergency.
Done by executive order, this plan would allow the White House to shift money from different budgetary accounts without congressional approval, circumventing Democrats who refuse to give Trump anything like the $5.7 billion he has demanded. Nor would it require a controversial emergency declaration.
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The emerging consensus among acting chief of staff Mick Mulvaney and top budget officials is to shift money from two Army Corps of Engineers’ flood control projects in Northern California, as well as from disaster relief funds intended for California and Puerto Rico. The plan will also tap unspent Department of Defense funds for military construction, like family housing or infrastructure for military bases, according to three sources familiar with the negotiations.
“There are certain sums of money that are available to the president, to any president,” Mulvaney said on Meet the Press Sunday. “So you comb through the law at the president’s request…. And there’s pots of money where presidents, all presidents, have access to without a national emergency.”
But the strategy is far from a cure-all for a president with no good options, and it has already sparked debate within the White House. Moving funds by executive order is virtually certain to draw instant court challenges, with opponents, including some powerful members of Congress, arguing the president is encroaching on the legislative branch’s constitutional power to appropriate funds.
Some Trump officials, including those aligned with senior adviser Stephen Miller, have argued internally that the gambit might be even more vulnerable to court challenges than a national emergency declaration. And in a sign of the political fallout, the top Republican on the House Armed Services Committee has argued that tapping military construction money would hurt the armed forces’ potential readiness.
Until now, Trump officials had focused on the drawbacks of a possible national emergency declaration. But as the alternative option of moving money by executive order has come into clearer relief ahead of a Feb. 15 deadline for a spending deal with Congress that could avert a new government shutdown, so have the risks of that alternative option.
“It will create a firestorm, once you start taking money that congressmen think is in their in their districts,” said Jim Dyer, a former staff director for the House Appropriations Committee. “You will cause yourself a problem if that money was directed away from any type of project or activity because I guarantee it has some constituency on Capitol Hill.”
Inside the White House, the president’s lawyers have for weeks grappled with the question of how to defend Trump should he choose to assert broad executive powers to build the wall. While the phrase “national emergency” has an extreme ring, some administration attorneys note that it is a well-established power under a 1976 law that has been invoked 58 times by past presidents. They call it uncontroversial that presidents have broad discretion to declare a national emergencies and similarly broad authority to deal with them.
“President is on sound legal ground to declare a National Emergency… this is hardly unprecedented,” Trump tweeted on Sunday, quoting comments by Rep. Tom McClintock (R-Calif.)
“The appeal of the national emergency is really the hope that, by just declaring it, by mouthing the words ‘national defense,’ what they would be doing is saying to the courts, ‘Hands off, this is a military determination and you can’t touch it,’” said David French, a senior fellow at the National Review Institute and a former JAG attorney. (Trump has said he would invoke emergency powers in the name of national defense against drugs, criminals and even terrorists.)
A national emergency declaration, however, does not unlock unlimited powers and would be subject to court challenges. The White House counsel’s office has been studying two statues in detail that Trump could invoke under national emergency circumstances — and both come with problems.
One, 10 USC section 2808, authorizes military construction projects that support the use of the armed forces. Those are typically things like barracks, helipads, and other military fortifications. The other, 33 USC section 2293, allows the Secretary of the Army to redirect funds from the Army’s civil works program for projects including “authorized civil works.” White House lawyers, however, expect to be challenged about whether the wall truly supports the armed forces or is an authorized civil work.
Neither the White House press office nor a spokeswoman for the Office of Management and Budget responded to requests for comment.
While White House officials still hope Congress can work out a deal to keep the government open, a bipartisan committee hit roadblocks over the weekend that dimmed hopes for a compromise, and Trump officials continue to sift through the alternatives — well aware of polls that showed Trump took most of the blame for the unpopular 35-day shutdown that began in late December.
“My guess is the president ends up using executive authority to try to re-program funds,” said one Republican close to the White House, who stressed that no one knew exactly what the president would do over the next five days. “Then, in the coming months through some form of military funds, they start building parts of the physical barrier. He can start claiming that, despite Democrats’ intransigence, he has done something on the wall.”
Another Republican close to the administration predicted that Trump would cobble together money for his wall from multiple sources. That could mean signing a congressional deal likely to include only a fraction of the $5.7 billion he seeks while supplementing it with executive action that accesses billions more.
Even if Trump decides that the legal obstacles of an executive order are less daunting that those that would come with a national emergency declaration, tapping unspent funds intended for disaster relief and military construction would bring serious political and policy risks.
By diverting disaster money intended for heavily Democratic California and Puerto Rico — instead of staunchly Republican Texas, which is still rebuilding after Hurricane Harvey — Trump opens himself up to criticism that he’s favoring red states over blue ones. Both of Texas’ GOP senators, Ted Cruz and John Cornyn, have made clear their opposition to re-programming any Harvey relief funds.
Re-directing the military funds by fiat is also more complicated than it might sound, in part because Pentagon spending typically happens slowly over long time frames.
“Given the priority this is associated with, I imagine a lot of the red tape will be expedited, but it doesn’t mean it can happen overnight. Military construction is a five-year appropriation for a reason, because these projects take a long time. Military construction is not a speedy process,” said John Conger, a former senior Obama-era Pentagon official.
Wesley Morgan, Connor O’Brien, Jennifer Scholtes, and Annie Snider contributed reporting.