President Trump has declared a national emergency to build “hundreds of miles” of border barrier by the end of September. He’ll be relying on four sources of funding to do so, pulling $1.375 billion first from the Homeland Security appropriations bill, then $600 million from the Treasury Department’s drug forfeiture fund, $2.5 billion from the Department of Defense’s (DOD) drug interdiction program, and finally, $3.6 billion from DOD’s military construction account. It’s that last source of funding that’s forcing the President to invoke an emergency declaration, allowing the Secretary of Defense to allocate funds from non-essential civil works projects to ones essential to the national defense. In response, a coalition of 16 states have filed a lawsuit alleging it unconstitutional for the Administration to reallocate DOD money from other projects to building a wall. Further, the states claim it would cause “significant harm” to their public safety, financial well-being and natural resources.
Meanwhile, the House introduced a bill to terminate the President’s emergency order today. With Democrats holding a 235-197 majority, it’s likely to pass and force the Senate to consider the bill within 18 days. While Senate Republicans hold a 53-47 majority, Democrats will only need to flip 4 Republicans for it to head to the President’s desk. White House Senior Policy Advisor Stephen Miller indicated that the President would veto the bill. If so, it would take a two-thirds majority vote in Congress to reverse his veto.
Mo Money, Mo Problems?
“A congressional aide, who spoke on condition of anonymity, said Trump can divert roughly $21 billion in military construction funds that aren’t already obligated for use on border projects. Some of the $21 billion will be taken from the “wartime funds” account, which is known as the overseas contingency operations, or OCO.”
What A Future (Democrat) President Could Do
“Some statutes might allow a President to suspend oil drilling on federal land or promote battery or electric vehicle production. There are even statutes that could give the president power in an emergency to regulate the financial activities of foreign countries or companies that (in Farber’s terms) are ‘trafficking in fossil fuels.’”
A Matter For The Courts
“Legally, the courts will be faced with a host of questions. Two among them strike me as paramount: First, what is an emergency? The act does not define it. Second, however a federal court decides that question, what degree of deference should the judiciary give the president’s determination that a national emergency exists? Past emergencies include events on the order of the attacks of 9/11 and the Persian Gulf wars.”
Lawsuit That Could Be Used Against Trump’s Declaration
House Democrats could use “a 2014 suit House Republicans brought against the Obama administration as a helpful precedent. At the time, Republicans argued that the Obama administration’s attempt to pay out subsidies to different health insurers under the Affordable Care Act was unconstitutional, because Congress hadn’t allocated those funds. A district court judge affirmed that this concern offered grounds for Republicans to sue.”