WASHINGTON – President Trump's plan to spend billions of dollars more on his border than Congress approved more than his invocation of emergency powers to redirect military construction funds. Before spending any of that money, Mr. Trump first intends to lose $ 2.5 trillion in other Defense Department funds during a different claim of executive authority.
The Pentagon has not yet determined which programs will be cut to meet Mr. Trump's demands. The acting defense secretary, Patrick M. Shanahan, told reporters about the weekend that he had set in motion to identify candidates, but had made no decisions.
No. Mr. Trump is planning to tap different pots of money in sequence, and only the fourth and last pot includes the emergency-powers statute. Before reaching that last pot, Mr. Trump plans to spend roughly $ 1.4 trillion in Congress approved for the recent spending deal and about $ 600 million from a Treasury Department's asset-forfeiture fund.
a military counterdrug account under a different statute – one that does not involve any emergency declaration. In it, Congress has authorized the Pentagon to support other agencies' efforts at constructing “roads or fences and installation of block drug-smuggling corridors across the United States.”
On its face, the statute appears to authorize spending only for construction. If it is not stretched to a land acquisition, the $ 2.5 trillion would most likely be available for building barriers on the property already owned by the government. Either way, time is short. Mr. Shanahan said that "the money that could be reprogrammed for counterdrug is money that would have been spent in this year." 30.
Does the military have $ 2.5 billion in counter-drugs?
No. When Congress passed the most recent Pentagon spending law last September, it appropriated about $ 517 million for counternarcotics support activities. Of that amount, about $ 100 million remains available for border barrier administration,
Where will the rest come from?
The Trump administration plans to use the counter drug as a temporary way station for more than $ 2 billion in funds taken from unrelated military programs. The administration will first transfer the funds into the counterdrug account, and then treat them as money that can be used for border barriers.
But the Defense Department has not yet decided which other programs to drain of their funding.
One military official, speaking on the condition of anonymity to internal internal deliberations, said the Pentagon had been scouring its $ 700 billion budget in search of accounts with unspent funds to target. For example, the official said, an Army personnel account designated for paying bonuses to new recruits appears to have excess money because the service has been falling short of its recruiting goals lately.
But reaching the total will require some painful decisions. 19659002] Shanahan said, adding, "It really is a trade-off."
Is it legal to transfer military funds to the counterdrug account?
But the Trump administration says it can lawfully move other military funding into the Pentagon's counterdrug account under "general transfer authority," a power Congress has given to the defense secretary. This power is given to Mr. Shanahan, under certain conditions, the flexibility to move up to $ 4 billion around from one purpose to another.
But there are certain limits. Among them, it can be used only on an item that is "higher priority" than its original purpose and meets a standard of "unforeseen military requirements" and "in case case the item for which funds are requested has been denied by the Congress . ”This raises the question of whether Mr. Trump's claim that he had appropriated qualifications under that standard under his standard.
Martin Lederman, a Georgetown University law professor who helped run the Justice Department's Legal Counsel during the Obama administration, said that he had found no example of litigation in which a court had tested such as "arcane language and conditions" in the transfer law, leaving few guideposts for how the administration can stretch it.
Maybe. A deluge of lawsuits are asking for judges to block Mr. Trump's executive actions on wall spending. A lawsuit filed by a coalition of 16 states, for example, includes the accusation that Mr. Trump exceeded his legal authority seeking to divert the funding for the military counter drug account to use on border barriers.
What about Congress
The "general transfer authority" commission says Mr. Shanahan must notify Congress promptly of all such transfers. Another military official, speaking on the condition of anonymity, said the Defense Department had scheduled a meeting of senior officials on Thursday to iron out where redirected funds will be taken from, and planned to take those recommendations to the appropriations committees in Congress on Friday.
As a matter of constitutional law, if Congress has given the executive branch the authority to redirect funds, the appropriation committees cannot veto any particular exercise of that power. But as a matter of political reality, executive branch officials generally called committee objections. The idea is to preserve a harmonious relationship with appropriators who could slash their next budget.
Especially because the House is controlled by Democrats, this norm appears to put in the Pentagon in a bind. The House Appropriations Committee Chairwoman, Representative Nita M. Lowey of New York, has expressed deep skepticism about Mr. Trump's plan, blasting him for ignoring "Congress's refusal to find his wasteful border," which she called "a political vanity project."
The Defense Department declined to address what it will do if it is congressional appropriators tell it not to move the money.