Building a Wall in the Dark

Op-EdBuilding a Wall in the DarkCongress is using budget shenanigans to funnel Pentagon money to President Trump’s border wall.

National Security  | Quick Takes
Jul 19, 2017  | By  | 6 min read

Fair warning: This week’s column is a deep dive into the inner workings of the House of Representatives.

 When you kick that rock over, goodness knows what will skitter out. In this case, it reveals some unsavory shenanigans to funnel money to President Donald Trump’s proposed border wall.

If you’re for the wall, you’re thinking, “Good! We should be spending taxpayer dollars to keep illegal immigrants out of the country.” But, if I told you the money was going to come from the Pentagon budget, would that still make sense to you?

Federal military troops are forbidden to engage in law enforcement actions – such as enforcing immigration law – by the long-standing posse comitatus prohibitions. (The National Guard is a different case, since its members are under the partial control of their state governors.) The federal agencies charged with protecting U.S. borders and enforcing immigration laws, like the Coast Guard and the Border Patrol, are in the Department of Homeland Security. And the president’s budget request for fiscal year 2018 includes just over $44 billion for the department.

So, again, I ask, why should the Pentagon be asked to pay for a border wall? It seems to be a testament to the famous reason Willie Sutton gave for robbing banks: “Because that’s where the money is.” The Pentagon, with a total proposed budget of $639 billion ($574 in base budget and $65 billion in special “war” accounts), is where lawmakers can find the money for just about anything.

But the House Armed Services Committee version of the annual Pentagon policy bill included a common-sense provision to make sure the Pentagon isn’t tasked with paying for the wall: “Section 1039. Rule of construction regarding use of Department of Defense funding of a border wall. None of the funds authorized to be appropriated by this act or otherwise made available for the fiscal year 2018 for the Department of Defense may be used to plan, develop or construct any barriers, including walls or fences, along the international border of the United States.”

A careful reading of this language (and that’s what we do at Taxpayers for Common Sense) points out this is a fairly broad prohibition. The armed services committees don’t ultimately control how federal dollars are spent. The Constitution preserves that role for the appropriations committees. But by saying “or otherwise made available … for the Department of Defense,” the House Armed Services Committee was foreclosing the possibility of spending any Pentagon money on this wall in a more comprehensive way.

That was the plan. And at Taxpayers for Common Sense, we supported the idea.

Enter the House Rules Committee. A little known congressional powerhouse, the Rules Committee is also called the speaker’s committee. It’s called that because the speaker of the House simultaneously served as the chairman of the committee until 1910 and, as the committee website says, “because it is the mechanism that the speaker uses to maintain control of the House floor.”

The Pentagon policy bill, HR 2810, needed a “rule” to allow for its consideration on the House floor. The committee meets to consider the hundreds of amendments offered by House members, decide which will be allowed during House debate and determine how long that debate may last. And this is where we’re going to step off the cliff into the inner workings of the House, as I promised above.

An amendment was offered by Republican Reps. Steven Palazzo and Trent Kelly from Mississippi (which has coastline but no land border) to strike Section 1039. That means Pentagon money could be spent to construct a border wall. In the normal process of things, this amendment would have been accepted by the Rules Committee and then debated and voted on by the full House of Representatives. But nothing about this amendment can be called normal.

The Rules Committee took this one amendment and labeled it, “proposed to be adopted.” In the arcana of House rules, this means that voting for the rule governing consideration of the bill was also voting for this amendment. This is known as a “self-executing rule.” The ranking Democrat on the committee, Rep. Louise Slaughter of New York, offered an amendment to strike the self-executing portion of the rule and was defeated in committee on a party-line vote of 4-8.

On the House floor, the vote on the full rule passed. And at the end of a long and exhausting day (and story), that means Pentagon money can be used to construct a border wall. Talk about governing under the cover of darkness.

This is wrong. The Department of Homeland Security, and its budget, exists to cover these and other expenses. If we keep putting non-defense requirements into the Pentagon budget, we are defeating the purpose of individual federal departments and budgets.

Enough. If this is a high priority for the president and Congress, they should request and appropriate the funds to the right federal department. And the debate on that spending should be in the open, not hidden in a so-called self-executing rule.

Originally published on October 17, 2017 in U.S. News & World Report