Today’s headlines that the president would like to avoid a government shutdown, including the assurance that they can pay for the wall another way, defies logic and the law. I’m all for avoiding a shutdown – they accomplish nothing and cost taxpayers money. But the president can’t simply “find a way” to pay for something for which Congress has not appropriated funds.
As a refresher, the Department of Homeland Security (DHS) is one of the federal government agencies still operating under a Continuing Resolution (CR) which limits funding to Fiscal Year 2018 levels. The president’s budget request for DHS in FY19 included only $1.6 billion for 65 new miles of border wall. But since that February request, the president has stated on numerous occasions he now wants $5 billion in the current fiscal year. To my knowledge, however, no budget amendment with an accompanying justification has ever been presented to the congressional Appropriations Committees. Without a formal amendment there is little information for the Congress to rely upon regarding how and where this money is to be spent.
Likewise, there has been little knowledgeable debate in Congress about how much money has been spent on border barriers to date and whether that spending has been effective in stifling illegal immigration. During a recent Oval Office meeting House Minoirty Leader Nancy Pelosi (D-Calif.) said this about border security: “We have to have an evidence-based conversation about what does work, what money has been spent and how effective it is.”
My organization, Taxpayers for Common Sense (TCS), analyzed DHS budget documents and tallied up all border barrier spending since FY2007. The total amount is $9.7 billion. We also tabulated the share of the cost borne by each state.
Among the dizzying array of statements on this topic by President Trumpthe idea of the Defense Department somehow being involved in paying for the wall, and the military being tasked with building it, has also arisen. This idea was raised before and led several Democratic members of the House Armed Services Committee to send a letter earlier this year decrying this tactic. I agree 100 percent with the point the authors of the letter are making, “…building a border wall would not measurably strengthen our homeland security and would be excessively costly, harmful, and a waste of taxpayer resources.”
That letter was written in anticipation of Congress taking legislative action specifically allowing the use of Pentagon funds for a wall. Since then, the Pentagon has deployed thousands of military personnel to the border in support of Customs and Border Protection (CBP) activities. The only Pentagon statement on the cost of that deployment was from late November and estimated the costs to date as $72 million.
This latest idea of actually paying for wall construction out of the DoD Appropriations bill has a major stumbling block: the Antideficiency Act. Once the domain of only the most serious appropriations law nerds, the Trump era has pushed this statute out of the shadows of “Principles of Federal Appropriations Law” and made it an issue that must be discussed.
Simply stated, this is the law that says money appropriated by Congress cannot be spent in advance or in excess of a congressional appropriation. Also, the act prohibits “…involving the government in any obligation to pay money before funds have been appropriated for that purpose…” (emphasis added.) In effect this means funds may only be used to pay for the item or action for which the money was specifically appropriated.
Of course, there are exigent circumstances where the Pentagon (or any federal agency) can petition the Congress to transfer money appropriated for one purpose to another account. This is done via a formal “reprogramming” request requiring notification of the Congress, which may withhold approval from the request.
Given that the Fiscal Year 2019 Department of Defense Appropriations Acthas already been signed into law (Public Law 115-245), and that none of the $674.4 billion in that bill was labeled for construction of a wall, the president cannot, willy-nilly, spend $5 billion of that money on a wall or any other border barrier. And while I certainly agree the Pentagon could spend less and still keep the country safe, that does not allow the president to shift money where he would like.
Either a formal reprogramming request must be sent to the Congress or any final appropriations legislation must specifically allow Pentagon appropriations to be used for barrier construction. Barring either of those actions, the Trump administration risks violating the law.