WOLA: Advocacy for Human Rights in the Americas

(AP Photo/Christian Torres)

15 Jan 2020 | Commentary

Trump to Seize More Border Wall Money Through Brute Force

More than Three-Quarters of Border Wall Funds will Lack Congressional Approval

The Washington Post revealed on January 14 that the Trump administration plans to divert $7.2 billion out of the Defense Department’s budget and into border wall construction in 2020. That would repeat something the White House did—and has so far gotten away with— in 2019: plowing into wall-building $6.7 billion that Congress never approved.

Border fences or “walls” make little difference to border security, outside of densely populated areas where undocumented border crossers might be able to vanish quickly. (Nearly all densely populated areas already have walls. Or even double and triple walls.) In rural areas, they are a speed bump.  They do little to dissuade border crossers who actually want to be apprehended in order to ask for protection in the United States —the majority in 2019.

A wall stretching dozens of miles through unpopulated desert is not only a serious environmental hazard. It is more of a monument than a strategic barrier: a monument to the beliefs of a president who views asylum-seekers as “invaders” and Mexican migrants as “rapists, and some, I assume, good people.” It is less a border security device than a prop for Trump’s re-election campaign. Congress refused to fund it in late 2018 and early 2019, and the government partially shut down over the issue for 35 days.

Even before this new transfer, Donald Trump had wrested $9.892 billion in wall funding from Congress and from other agencies’ budgets through 2019, plus $1.375 billion more that Congress already appropriated for 2020. If Trump gets his way with the additional $7.2 billion transfer this year, his four-year wall-building budget will be $18.467 billion.

Click on the graphic to see a full-size version.

This amount, the Post reports, is enough to build 885 miles. That’s a rate of $21 million per mile; the actual per-mile cost will probably end up being more. (See a January 2018 WOLA commentary for examples of some amazing things that the equivalent of a few border-wall miles could pay for.)

Of the $18.467 billion in Trump’s wall funding between 2017 and 2020, only $4.566 billion was actually approved by Congress. That means Congress will have actually appropriated less than a quarter of the money the Trump administration plans to spend on a major federal infrastructure project. A clear majority of Congress doesn’t want to blow this much money on a useless wall.

While challenges continue in the courts, Trump has so far obtained the other three quarters of the wall-building money by executive fiat, using three mechanisms:

1- By proclaiming a “national emergency,” Trump has moved money—$3.6 billion so far—out of military construction projects and into wall-building. That proclamation came on February 15, 2019, shortly after Trump lost his shutdown battle with the Congress, which refused to pay for the wall. The Washington Post is reporting that the White House wants to pull another $3.7 billion out of military construction in 2020.

2- By exploiting two legal provisions governing how the Defense Department can use its budget, Trump has so far obtained $2.5 billion more for his wall. These laws are: 

  • Section 284(b)(7) of Title 10, U.S. Code, a piece of drug-war legislation that first passed a Democratic-majority Congress in 1990. It allows the Defense Department to use its budget for “construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” The Defense budget can be used to build walls, as long as the Department can claim there’s a counter-drug reason for doing so. (Incidentally, other parts of Section 284 have made the Defense Department’s counter-drug budget the number-two source of military and police aid to Latin America since the 1990s.)
  • Section 284 was not enough on its own, though: the Defense Department’s annual worldwide “Drug Interdiction and Counterdrug Activities” budget was only $1.035 billion in 2019, most of it already accounted for. It was not enough to pay for border walls. So the White House had to use another provision: Section 8005 of the 2019 Defense Appropriations bill, which lets the president move up to $4 billion around from one category into another within the Defense budget. In the end, the Trump administration ended up cutting $2.5 billion from a long list of Defense categories—from personnel costs to training for Afghan security forces—and plowing it into the counter-drug account, where it can pay for walls. (See the graphic below for a list of what got cut.)

The Washington Post is reporting that the White House wants to get another $3.5 billion using this maneuver in 2020.

3- The White House found an additional $601 million by raiding the Treasury Department’s Forfeiture Fund, a pot of money established in 1992, mainly for the drug war, that manages assets seized from those whom law enforcement has probable cause to believe are criminals.

This is a lot of money being transferred without the approval of Congress, which the U.S. Constitution gives the power to appropriate funds. Congress has tried to disapprove this direct defiance of its wishes.

In February-March and September-October 2019, Congress held votes to disapprove Trump’s February 15 “emergency” declaration. Both “resolutions of disapproval” won majorities, with 26 Republicans voting with all Democrats. But due to a 1983 Supreme Court decision, the President can veto these disapproval resolutions, which Trump did. Undoing the emergency, then, requires a two-thirds majority of Congress to override the presidential veto; the override votes have reached an impressive but insufficient 58 or 59 percent.

Given all of this, it’s fair to ask why we bother having an appropriations process at all, if calling something an “emergency” can so easily allow a president to go against the will of Congress. The 2019 transfers represent a huge shift of power from the legislature to the executive, and the 2020 transfers, if they happen, will cement it further. 

At WOLA, we’re Latin Americanists. We’ve seen this sort of rule by decree in Latin American countries experiencing transitions from democracy to authoritarianism.

Important challenges to some of these transfers are moving through the federal court system. The $3.6 billion from military construction has been halted and re-started; attorneys representing the ACLU, the Sierra Club, and the Southern Border Communities Coalition filed an emergency motion on January 10, 2020 to halt it again. Last July, the Supreme Court allowed the $2.5 billion in “counter-drug” wall construction to proceed while deliberations continue.

For now, here’s what last year’s border wall funds look like. The graphic shows the $6.1 billion in military priorities that got cut in 2019 to pay for border wall-building. We don’t know yet what the even deeper $7.2 billion cuts proposed for 2020 would seize from the Defense Department’s budget.

Click on the graphic to see a full-size version.


Source documents used for this data: