The Legality of the Wall Is Not Primarily a National Emergency Question

by Sam Wice — Friday, Feb. 22, 2019@Wice_sam

Although the national emergency declaration is getting much of the attention, its legality will not primarily determine whether President Trump can build a wall along the border with Mexico. Specifically, only about a quarter of the additional funding President Trump wants to use to build the wall would come through his national emergency authority. Instead, the main legal issues regarding whether President Trump can build his wall are statutory authority and appropriations issues.

Potential Non-National Emergency Statutory Authority to Reprogram Funds

After Congress only appropriated in the Consolidated Appropriations Act, 2019 $1.375 billion for a “pedestrian fence,” President Trump announced that he would reprogram up to an additional $6.7 billion to build the wall. He plans to reprogram, sequentially:

President Trump likely sequentially ordered the funding sources based on the legal strength of reprogramming funds from each source to build a wall.

In total, up to $3.1 billion, including the first sources of money to be used, would come from non-emergency authority while up to $3.6 billion would come from emergency authority. Put another way, assuming that President Trump only needs the previously requested $5.7 billion to build his wall, President Trump would need an additional $4.325 billion above what Congress appropriated in the Consolidated Appropriations Act, 2019. After spending the $3.1 billion in non-emergency reprogrammed funds, President Trump would need to use $1.225 billion of the emergency funds, which would be 28.4% of the additionally required funds. As such, even if litigants won every single legal argument invalidating the national emergency declaration and/or Congress could override a veto to overturn the declaration, President Trump could still build most of his wall.

Regarding the non-emergency funding sources, the Treasury Forfeiture Fund (31 U.S.C. § 9705(g)(4)(B)) provides that after reserves and required transfers, the Treasury Forfeiture Fund’s “unobligated balances . . . shall be available . . . for obligation or expenditure in connection with the law enforcement activities of any Federal agency . . . .” As a wall is involved with the law enforcement activities of the U.S. Customs and Border Protection, reprogramming the funds for a wall is likely allowed under the authority.

Likewise, the Support for Counterdrug Activities (10 U.S.C. § 284) funding allows the Secretary of Defense to “provide support for the counterdrug activities or activities to counter transnational organized crime” of any law enforcement agency. Such support may include “[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” As the U.S. Customs and Border Protection is a law enforcement agency and the funds would be used to build a “pedestrian fence” to block an international boundary, reprogramming the funds for a wall is likely allowed under the authority.

However, 10 U.S.C. § 277 requires the U.S. Customs and Border Protection to reimburse (which it cannot comply with as money is not appropriated to do so) the Defense Department for the Support for Counterdrug Activities funding unless the Secretary of Defense waives the reimbursement requirement by determining that such support “(1) is provided in the normal course of military training or operations or (2) results in a benefit to the element of the Department of Defense or personnel of the National Guard providing the support that is substantially equivalent to that which would otherwise be obtained from military operations or training.” The Secretary of Defense is likely to provide such a waiver, and based on Trump v. Hawaii, the Supreme Court will likely defer to the Secretary of Defense’s determination.

Appropriations Law Questions

All three funding sources that potentially allow President Trump to reprogram funding are being challenged on appropriations law grounds. Specifically, the states challenging the reprogramming of funds claim (1) that by specifying only $1.375 billion dollars for a wall, Congress precluded other funding for a wall and (2) Congress did not authorize or appropriate the reprogrammed money for a wall.

Congress likely did not preclude reprogramming money from the three funding sources via the Consolidated Appropriations Act, 2019. In general, appropriations acts are not included in the U.S. Code and they do not modify existing statutes. The Supreme Court has held that Congress must be explicit if it wishes to repeal a statute via an appropriations act:

This is perhaps an understatement since it would be more accurate to say that the policy [disfavoring repeals by implication] applies with even greater force when the claimed repeal rests solely on an Appropriations Act. We recognize that both substantive enactments and appropriations measures are “Acts of Congress,” but the latter have the limited and specific purpose of providing funds for authorized programs. When voting on appropriations measures, legislators are entitled to operate under the assumption that the funds will be devoted to purposes which are lawful and not for any purpose forbidden. Without such an assurance, every appropriations measure would be pregnant with prospects of altering substantive legislation, repealing by implication any prior statute which might prohibit the expenditure. Not only would this lead to the absurd result of requiring Members to review exhaustively the background of every authorization before voting on an appropriation, but it would flout the very rules the Congress carefully adopted to avoid this need.

Here, the plaintiffs will have a tough argument. The language limiting funding for a “pedestrian fence” to $1.375 billion only placed that limitation on funds in the U.S. Customs and Border Protection—Procurement, Construction, and Improvements account. As I previously wrote, Congress could have included language to specify that no part of any other appropriation contained in the Consolidated Appropriations Act, 2019 or any other act could be used to build a wall. However, it chose not to do so.

Specifically, Congress did not reference any of the three funding sources even though Congress was on notice that President Trump was considering using such authority. Additionally, the conference report for the Consolidated Appropriations Act, 2019 does not specify that Congress intended to preclude other sources of funding. Further, none of the three relevant funding sources were subject to appropriations considered under the Consolidated Appropriations Act, 2019: The Treasury Forfeiture Fund is a permanent fund not subject to annual appropriations and the other two funds were appropriated in earlier appropriations act. To say that Congress wished that President Trump not use the other funding sources would be to imply Congress’ intent, which the Supreme Court has expressly rejected.

The states will also likely lose the argument that Congress did not authorize or appropriate the relevant reprogramming of funds. Assuming that President Trump is acting within the scope of each of the three funding sources, Congress did authorize and appropriate the funding in those provisions. Congress gave broad discretion to the president in how to spend the appropriated money. The Supreme Court has held that “[t]he allocation of funds from a lump-sum appropriation is [an] administrative decision traditionally regarded as committed to agency discretion.” Further, (1) I am unaware of any and (2) the states challenging the reprogramming do not mention any statutory language generally prohibiting reprogramming within the three relevant funding sources. That Congress provided too much discretion is a policy argument, not a legal argument.

Conclusion

As only about a quarter of the money President Trump plans to reprogram to build his wall comes from emergency funding, the only way to completely prevent addition funds to build the wall is for a court to find that the reprogramming (1) violates the authority granted in all three funding sources or (2) violates appropriations law. However, those arguments are likely to fail as Congress provided broad enough statutory authority that a court will likely uphold at least one of the three funding sources. Similarly, Congress likely did not explicitly repeal the relevant authority to use the three funds to build a wall.

All is not lost though for those opposed to the wall. Plaintiffs could get an injunction to delay reprogramming money to build the wall. All they need to do is prevent any portion of the wall (outside of the areas authorized in the Consolidated Appropriations Act, 2019) from being built before the beginning of the new fiscal year on October 1. House Democrats could then require that the relevant appropriations act(s) for fiscal year 2020 include limiting language that no part of any appropriation contained in that or any other act may be used to build a wall unless expressly authorized.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Sam Wice

Sam Wice is a former analyst at the Congressional Budget Office and a former Council Member of the American Bar Association’s Section of Administrative Law and Regulatory Practice. He can be reached at sam.wice[at]outlook.com.

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