WASHINGTON (Sinclair Broadcast Group) — President Donald Trump continues to tease the idea of declaring a national emergency, saying he has an "absolute right" to do it if Democrats in Congress refuse his demand for $5.7 billion to construct the U.S.-Mexico border wall.
Before traveling to the southwest border Thursday, Trump told reporters that he is almost "100 percent" certain to declare an emergency if he and Democrats can't make a deal on the border wall. "I would say it would be very surprising to me that I would not declare a national emergency and just fund it through the various mechanisms," he said.
The president walked back those comments Friday, telling reporters that an emergency declaration would be "the easy way out" but he still left the option on the table. "It's too simple. It's too basic," he said, adding that Congress should fund the wall.
Even with an annual discretionary budget that tops $1.2 trillion, $5.7 billion for the border wall is not money that can be found in the couch cushions of the federal government.
The president has already ordered members of his administration to look for money that can be reallocated to the wall project, White House chief of staff and budget director Mick Mulvaney told CNN Sunday. "The president has asked every single Cabinet secretary and the Office of Management and Budget to go out and find money that can be used legally to guard the southern border, which is exactly what we're going to do," Mulvaney stated.
Rumors around Washington suggest the president and his staff are eyeing parts of the Pentagon's substantial 2019 budget, specifically a $10.3 billion military construction fund. The wall would eat up more than half of the military construction budget for the entire year. Dozens of projects would have to be zeroed out, such as military family housing, infrastructure, research laboratories and improving force protection and safety at military installations.
Officials at the Pentagon said that the majority of the military construction funds have already been allocated and estimated that they may be able to cobble together one-quarter to one-third of the money, or $2.5 billion to $3 billion, according to reports.
Another possible source for the funds is disaster relief. According to The Associated Press and others, the White House has directed the Army Corps of Engineers to look through its $13.9 billion disaster relief fund from 2018 for any unspent money. Those funds were originally authorized for areas like Texas, Puerto Rico and more than a dozen other states hard hit by hurricanes, floods, wildfires and other natural disasters.
There is little doubt that the president has broad authority to declare a national emergency. Under the 1976 National Emergencies Act, Congress largely left the power to declare a national emergency to the discretion of the commander in chief. The president must formally sign a declaration, he must establish what statutory authorities will be used and he must go back to Congress within two years to either extend or end the emergency declaration.
Outside of the declaration, the president's authority is more limited when he starts moving money without congressional approval.
"One thing that's absolutely clear, is the president does not have an unlimited range of emergency powers," said Kenneth Mayer, an expert in executive powers and professor at the University of Wisconsin-Madison.
Mayer continued, "The president can issue an executive order or a proclamation saying a national emergency exists, but it's not as if that magically creates the situation where two hours later there are federal contractors starting to pour concrete on the border."
Members of the president's party and others have warned the president that he will face immediate legal challenges if he attempts to use an emergency declaration to repurpose funds and build the wall without congressional approval.
Sen. John Cornyn, R-Texas, said an attempt to bypass Congress would likely land the administration in court. "There is a hard way and there is an easy way to do things, and I think that would definitely be a hard way," he said.
In the House, Republican Rep. Mark Walker of North Carolina signaled that he and his GOP colleagues were uneasy about the president using emergency powers to build the wall. "It may be a legal way to do it. It's not one that makes us all comfortable," he said.
Walker said the wall should be funded "the right way," through Congress, "the way the founding fathers designed."
Democratic Rep. Carolyn Maloney of New York accused Trump of executive overreach. "I am sure there will be a lawsuit filed against such an action and it will probably go to the Supreme Court," she told Sinclair Broadcast Group.
Not only would Congress have the standing to sue the president but so would the men and women who potentially would have benefited from the disaster relief or military construction funds.
Trump dismissed the potential legal challenges. Even if his action is challenged in court, Trump said Friday that precedent is on his side with the Supreme Court's decision to uphold portions of his travel ban. "Hopefully we'll win in the Supreme Court, but that's what happens," he said.
Trump also cited the White House legal counsel who assured him there are "various mechanisms" to move the money and build the wall. "This is a thing that the lawyers tell me is 100 percent," Trump said Thursday.
Technically, there are at least two statutes that suggest the president, in the event of war or a national emergency, can repurpose congressionally allocated funds.
Titled "construction authority in the event of a declaration of war or national emergency," 10 U.S. Code 2808 states that under conditions that require the use of the armed forces, the president may authorize the secretaries of the military "to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces." The projects cannot exceed the military construction budget, in this case, $10.3 billion.
The other statute is 33 U.S. Code 2293, which deals with reprogramming funds during national emergencies. The law states that the president, during a national emergency, can stop the construction, maintenance or repair of any Army civil works projects that he deems nonessential, and apply those resources, including money, materials and personnel, to build projects that he determines are necessary for the national defense. These emergency powers expire after roughly six months.
Within the parameters of those two statutes, President Trump would still be hard-pressed to reprogram the $5.7 billion for the border wall without consulting Congress, said William Hoagland, the senior vice president of the Bipartisan Policy Center and veteran staffer of the Senate Budget Committee.
"This is just completely undercutting the power of the purse which is specified in the Constitution as a power of Congress," he stated. "Unless they can make up the rules and find unallocated balances from previous years for the fence—even then, I think this would still require them going back to the Appropriations Committee to get it approved."
In general, the money appropriated by the legislative branch cannot be moved around at the whim of the executive. However, there are a small number of cases where the president and his Cabinet secretaries have some leeway.
Within each department, secretaries have some power to move funds from one account to another. There are two ways to do this: transferring or reprogramming.
For example, earlier this year the Department of Homeland Security transferred about $10 million from the Federal Emergency Management Agency to a detention program operated by Immigration and Customs Enforcement. Both agencies are part of DHS. The move was challenged politically but because DHS notified Congress of the move, it was ultimately upheld under the law.
The ongoing government shutdown means transferring DHS funds is not an option. The department has been bootstrapping funds from 2018 to last through the three-week long shutdown. The only departments that have 2019 funding are the Department of Defense, Health and Human Services, the Department of Labor, the Department of Education, the Department of Energy and Veterans Affairs.
Just because the president may have the authority to build the wall under an emergency declaration, doesn't mean he ought to, Mayer stressed. "It sets a precedent for future presidents to exercise the same power or to declare an emergency for any reason they want," he said. For example, a future president could declare global warming a national emergency.
In an Oval Office address earlier this week, Trump tried to lay the grounds for declaring a national emergency citing the historically high number of families and unaccompanied children arriving at the border, incidents of illicit trafficking and crime. The president's critics accused him of "manufacturing a crisis" and argued that the "emergency" conditions have existed at the border for years.
By floating the prospect of a national emergency, Trump is also flirting with a serious clash with Congress, where Democrats control the House and enough seats in the Senate to frustrate his agenda. "We've already got a major fight going on," Hoagland said of the fight around the government shutdown and border wall. "This is just the beginning of it. This is just the tip of the iceberg for the 116th Congress."