By declaring a national emergency on the southern border and at least attempting to repurpose military construction funds to the wall — whether for steel or concrete barriers or both — President Donald Trump has politically inoculated himself against Congress’ failure to deliver on his signature campaign promise to protect America.
Trump has done everything in his power to get it done. He managed to get Congress to approve $1.6 billion in 2018 for replacing existing fencing with new steel barriers and he got another $1.375 billion in 2019 for some new steel barriers.
The first leg of that was like pulling teeth, as Trump dealt with a reluctant Republican leadership in Congress that repeatedly delayed the issue in order to avert a government shutdown. And then the second leg of that came after Republicans lost control of the House, and only because Trump opted to reject a funding bill without border barriers, prompting the longest partial government shutdown in history. Finally, to end the shutdown, Democrats relented and allowed some new border barrier money to flow.
With the emergency declaration, the White House estimates that at least another $8.1 billion will be unlocked, well within the President’s legal authority: “About $601 million from the Treasury Forfeiture Fund… Up to $2.5 billion under the Department of Defense funds transferred for Support for Counterdrug Activities (Title 10 United States Code, section 284)… Up to $3.6 billion reallocated from Department of Defense military construction projects under the President’s declaration of a national emergency (Title 10 United States Code, section 2808)…”
That is, so long as Congress does not vote to overturn the national emergency declaration, something Congress has never done once in 43 years since the National Emergencies Act was adopted. More than 50 emergencies have been declared during that time and no less than 30 besides the one Trump declared are still active.
Again, not once has Congress ever voted to overturn such an emergency. So, are Republicans in Congress going to let this one be the first after all this time? They would be wise to consider the political fallout if that’s the way they go.
A vote to overturn the emergency will rightly be viewed by Trump’s base as a vote against funding the wall and a vote against letting President Trump do everything in his power to secure the border. It will be cast as a vote to prevent him from securing the border.
Some will argue that the National Emergencies Act creates exception to Congress’ power of the purse by allowing the President to reprogram already allocated monies to address an emergency, and that is most certainly true.
It is also well within Congress’ constitutional lawmaking authority to do so, the same way it gives broad grants of budget authority to departments and agencies to spend as they see fit. Departments and agencies engage in thousands of federal contracts that are not individually approved by Congress. They are granted monies to spend by Congress, and then the executive branch figures out the best way to achieve the legislatively delineated missions via the contracting process.
So, if there is an objection to reprogramming funds in national emergencies, then there should be similar objections raised to appropriating funds for broad purposes that departments and agencies then figure out the details of later.
In fact, monies are moved around all the time. Congress passes laws every year, for example in appropriations bills, that allow departments and agencies limited transfer authority to reprogram funds even when there is not a national emergency declared. Those objecting to reprogramming in principle because they think it should go back to Congress first should also be pushing measures to address transfer authority granted federal departments. But members are not doing that.
They’re looking at this one — and only this one — instance of transfer authority in the case of Trump’s emergency declaration on the southern border. The reason appears simple. Either, Congress doesn’t really want the nation’s borders to be secured, even as deadly drugs, gangs and human trafficking continue to pour into the country. If that’s not an emergency, then what is?
Or, perhaps it’s more cynical than that. They really don’t want Trump to keep his promises, in the hopes it will hurt him politically.
Either way, the crisis on the border is clear. On drug overdoses, over 70,000 Americans are dying every year. Some illegal immigrants are also responsible for the murders of Americans. The President, in his Congressionally, legally granted determination, believes creating more barriers on the border via a national emergency, would stem some of the drugs and murderers coming into the nation — saving American lives. That’s what the President is supposed to do.
Which is why it was politically wise for Trump to go the national emergency route. Even if Congress blocks him or overrides his veto on the declaration, it will favor his politics in 2020 — although it probably won’t do much to help Republicans reclaim the House of Representatives. Why? Once again, Congressional Republicans will then get the blame for failing to build the wall as Republican Senators put the nail in the coffin. For a solid example, look at the failure to repeal and replace Obamacare in the Senate, which like the failure to fund the wall in full, hurt Republicans in the House midterms in 2018.
Either way, Trump will get credit for doing everything in his power to protect America, and Congress will be the losers who voted to stop him. Trump ran in 2016 as the outsider who would stand up to the swamp in Washington, D.C. That he was the candidate who would put America first when no one else would. It’s why he won. If Congress blocks funding for the wall again, it will prove to the American people that Trump was right all along about the swamp — and they may very well be helping him get reelected.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government.
