Power Struggle Over the Wall: Presidential Emergency Powers vs. Congressional Power of the Purse

President Donald Trump’s proposal to take funds available to the Departments of Defense and Treasury and expend them on functions that are the responsibility of another agency, the Department of Homeland Security, runs counter to the basic principles of the Anti-Deficiency Act (31 U.S. Code § 1341) and the Purpose Statute (31 U.S.C. §1301). Said another way, fiscal law tells us you cannot combine the authority of one agency with the funds of another.  The question is whether an emergency declaration overrides these basic principles of separation of powers as manifested and practiced in fiscal law.  I do not believe that case will be made.

Much of the focus will understandably be on the validity of the emergency declaration, which raises numerous points of immense importance.   For example, President Trump stated over a month prior to doing so that he might declare an emergency if Congress did not provide additional wall funding, yet Congress chose not to provide the extra $4 billion he sought over and above his original budget request.  Does their rejection of his Jan. 6, 2019 funding request (made via a letter from the Acting Director of the Office of Management and Budget) constitute de facto consideration and rejection of his emergency argument? A strong argument can be made that it does. Nevertheless, that question may be rendered moot by the action Congress takes, or fails to take, on a joint resolution pursuant to the National Emergencies Act.

Power of the Purse

In my view, the core issue is not the President’s right to declare an emergency.  Rather, it is the scope of power that such a declaration provides him.  Nothing is more central to the principle of separation of powers than the power of the purse contained in Article 1, section 9, clause 7 of the Constitution, a power the Supreme Court ruled twenty years ago the Congress cannot give away. The President is invoking congressional statutes—not Article II constitutional authority—to fund the wall and take over private lands, which means the legal questions here do not necessarily raise the prospect of constitutional violations directly. Nonetheless, Congress’s exclusive constitutional power of the purse is at least a background principle that informs how closely tethered the executive branch must be to any limitations imposed by Congress on how funds may be spent.

The National Emergencies Act requires the President to cite the authorities he claims are made available to him to address the emergency.  The authorities President George W. Bush invoked (or were already specified as available per 50 U.S.C. §1651) after the 9/11 attack exemplify the type of emergency authorities Congress intended the Executive Branch to have: enhanced ability to manage the personnel of the armed forces and to speed contracting by waiving the normal requirement for competition.  The statutes that reflect Congress’ power of the purse, including the Anti-Deficiency Act, are not among the parts of the federal code that provide for any waiver under the National Emergencies Act, nor was any attempt to suggest the executive could avoid such prohibitions cited in the President’s emergency declaration.

Interagency Transfer of Funds

In his proclamation and the associated White House Fact Sheet, the President proposes to use funds appropriated for the Department of Defense (DOD) for the mission of another agency. He even makes explicit the underlying reality that his action is intended to deliver additional funds that the Homeland Security appropriations bill did not provide for the same purpose. He proposes to mix four types of disparate funding (Homeland Security appropriations, Treasury’s Forfeiture Fund, DOD military construction and DOD counter-drug funds) across three agencies for a project that is in the purview of only one of those agencies, with or without congressional approval.  That is not his prerogative. It is the power of the purse.

Rescinding Congressional Funding

The proposed use of 10 U.S.C. §2808 is particularly problematic.  Because of the “lumpy” nature of military construction funding, raising $3.6 billion from this source would require the President and the Secretary of Defense to cancel (effectively, to rescind funding for) numerous military construction projects, which the Secretary of Defense would select at his discretion.  While not per se an unconstitutional line item veto, Congress ought to be concerned that this gives the executive branch broad and potentially unaccountable rescission authority.  Suppose the Secretary decides to cancel every construction project not already under contract east of the Mississippi River, or every project in states that end in “a”?  What recourse would the Congress have?  This too puts the power of the purse in the hands of the executive branch.

Transfers Between Construction and Non-Construction Funds

Another issue of concern is the stated intent to use both counter-drug and military construction funding for the same (non-DOD) project, which entails combining two disparate types of appropriations in a way that is not permitted unless a specific authority to do so can be shown.  Either an item (such as a wall) is construction or it isn’t, so it is hard to see how military construction and non-construction funds can be combined without violating the Purpose Statute for one of them.

Reprogramming Funds for Items Denied by Congress

There is also the question of reprogramming rules. For the Department of Defense (including the counter-drug program under section 284), funds may not be reprogrammed for items denied by Congress (section 8005), which clearly this additional $6.1 billion in border wall funding was. That is a statutory requirement, once again, reflecting the power of the purse. What’s more, the Department has been very careful to ensure it acts consistent with congressional consent and intent whenever funds are reprogrammed. The longstanding practice (but not the statutory language, in light of the Supreme Court’s INS v. Chadha 1983 ruling), for reprogramming non-construction DOD funding requires prior approval of all four congressional defense committees, which seems unlikely for a proposal that Congress just rejected.  As a policy matter, reprogramming such funds absent that consent would place this needed funding flexibility tool for managing the Department at risk.

For military construction funds, there is no similar statutory general transfer authority.  Reprogrammings of construction funds are only from one authorized project to another, and funds may not be moved from one service or appropriation to another.  The proposed use of section 2808 probably does not contemplate seeking congressional concurrence via a reprogramming of construction funds.

The Meaning of a “Military Construction Project”

The more salient problem in attempting to use section 2808 is that the National Emergencies Act does not appear to provide the President the power to say that any physical structure, such as a border wall, is military construction. The section allows the President to “undertake military construction projects,” which has a precise meaning.

Military construction, per 10 U.S.C. §2801, must be on a military installation (where it can be of use to the troops) such as a military base or camp, which the border is not.  But in this case, the troops appear to be supporting the wall, as a pretext to invoke section 2808, rather than the structure (the wall) supporting the troops. If the President’s argument prevailed in this case, could a president not also mobilize the military for a war on poverty and call construction of low-income housing “military construction,” if mere involvement of troops or use of DOD funds was all that was needed to make that case?

Counter-Narcotics Funds

In my view, the counter-drug authorities under consideration in 10 U.S.C. §284 (which don’t require an emergency declaration) are probably on sounder legal footing than the proposed emergency authorities, given that the Department of Defense is one of multiple agencies with funding available for some aspect of the counter-drug mission.  Yet the use of Department of Defense funds for what is essentially a Department of Homeland Security mission may run afoul of a recurring general provision contained in section 8045 of the Department of Defense Appropriations Acts for fiscal years 2018 and 2019, which prohibits the transfer of counterdrug funds to any other department or agency unless “specifically provided in an appropriations law,” a test that section 284 fails to meet. While section 284 is surely dedicated to support for other agencies, it is not an appropriations law. What’s more, as I discussed above, a statutory prohibition on transfers makes clear that the authority to transfer applies “in no case where the item for which funds are requested has been denied by the Congress,” which is what Congress has done here.

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If I had been directed, when I was Chief Financial Officer of the Department of Defense, to implement the bulk of this plan that lies within the purview of Department of Defense, I don’t believe that that I would have concluded it was legal and appropriate to do so or that I would have received legal clearance from the Department’s General Counsel. The President’s use of an emergency declaration in this case poses profound challenges and raises profound risks to our system of government.

 

The views expressed in this article are in the author’s personal capacity and do not necessarily represent any position of the Stennis Center for Public Service or the Institute for Defense Analyses.

Photo: Chip Somodevilla/Getty Images

 

About the Author(s)

Michael McCord

Michael J. McCord served for eight years at the Department of Defense as the Under Secretary of Defense (Comptroller)/Chief Financial Officer and before that as the Principal Deputy Under Secretary of Defense (Comptroller) from January 2009 through January 2017. Prior to his service at the Department of Defense, Mr. McCord served for 21 years as a Professional Staff Member on the Senate Armed Services Committee for former Senators and Chairmen Sam Nunn and Carl Levin. He is now Director of Civil-Military Programs at the Stennis Center for Public Service Leadership and an Adjunct Research Staff Member at the Institute for Defense Analyses. You can follow him on Twitter (@Mike_J_McCord).