December 14, 2019
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‘Illegal order’ to divert money to border wall usurps power of Congress

Matt York | AP
Matt York | AP
Government contractors erect a section of Pentagon-funded border wall along the Colorado River, Tuesday, Sept. 10, 2019 in Yuma, Ariz. The 30-foot high wall replaces a five-mile section of Normandy barrier and post-n-beam fencing, shown at left, along the the International border that separates Mexico and the United States. Construction began as federal officials revealed a list of Defense Department projects to be cut to pay for President Donald Trump's wall.

Six months ago, Congress passed a resolution to end President Donald Trump’s declaration of an emergency on the southern border, which he has used to divert money away from military projects to fund construction of barriers on the U.S.-Mexico border.

Trump vetoed the resolution in March, which was supported by 12 Republican senators.

Sen. Susan Collins is again leading an effort to end the emergency declaration and, more important, the diversion of military funding that has already been allocated to other projects.

In February 15, the president declared a national emergency at the southern border and announced plans to divert $8 billion that Congress had appropriated for military construction projects to building barriers at the border.

Earlier this month, the Department of Defense listed the projects that will be delayed or diminished to devote money to the president’s border wall. The department said it will divert $3.6 billion in funding from 127 congressionally-appropriated military projects to the Department of Homeland Security for construction at the southern border.

The projects, about half of which are in the U.S., range from upgrading ammunition storage and training facilities to improvements to schools on military bases. None are in Maine.

Redirecting billions of dollars approved by Congress for other purposes raises glaring constitutional concerns. The U.S. Constitution gives Congress — not the president — the power to raise and spend federal funds. Congress decided that these projects were important and allocated money to them. These projects can’t simply be funded later with other federal funds.

“Let me be clear: The question before us is not whether to support or oppose the wall, or to support or oppose the President. Rather, it is: Do we want the Executive Branch — now or in the future — to hold a power that the Founders deliberately entrusted to Congress?” Collins said in a statement on Wednesday. “I strongly support protecting the institutional prerogatives of the Senate, and the system of checks and balances that is central to the structure of our government. Each of these deferred military construction projects was recommended by the President in his budget request, and funding for them was passed by both chambers of Congress and signed into law by the President, just as our system was intended to work.”

This fundamental problem led Collins to take the lead in introducing a bipartisan resolution to end the emergency in March.

That same problem remains six months later, which is why it is appropriate to again bring up the resolution to end the emergency declaration. It is also why more than the 12 Republican senators who backed the resolution in March should vote for it now. If they don’t oppose the money shift, they are sending the message that their work in Washington is essentially meaningless because the president can simply override it.

Sen. Angus King went even further on Thursday, calling the administration’s directive to the Pentagon to redirect some of its funding to border security “an illegal order.”

“I believe you’ve been given an illegal order,” King said to Undersecretary of the Army Ryan McCarthy. McCarthy was before the Senate Armed Services Committee for a hearing on his nomination to become Secretary of the Army. Barbara Barrett, Trump’s nominee for Secretary of the Air Force, was also before the committee. “I think what’s being done here is a gross violation of the Constitution — and the fundamental principles of the Constitution, which is a separation of powers, and the bestowing of the appropriation and spending power of the Congress.

“And what shocks me, is the failure of this Congress to stand for its prerogative,” King added. “If this goes through, it establishes a precedent that essentially transfers a significant portion of the powers of the administration – not just this administration, but any administration.”

As both senators said, this is not about whether lawmakers support border security improvements in the southern U.S. This is about following the Constitution, which affirms that it is the job of Congress, not the president, to disperse the taxpayers’ money.

 



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