President Donald Trump is facing challenges on Capitol Hill and in the courts over his emergency declaration, which would let him transfer funds from other construction accounts to pay for his long-desired wall along the border between the U.S. and Mexico.
Trump wanted Congress to appropriate $5.7 billion for the barrier, but in a fiscal 2019 spending bill enacted Feb. 15, lawmakers provided only $1.375 billion, limited to “pedestrian fencing” such as steel bollards.
The president suffered a setback on Feb. 26, when the Democratic-controlled House, as expected, approved a measure to nullify his declaration. The vote was 245-182. Thirteen Republicans did vote for the legislation, but the margin fell short of the two-thirds needed to override an expected Trump veto.
By mid-March, the Senate, where Republicans hold the majority, is expected to take up similar legislation. At ENR press time, tallies suggested the bill would get enough GOP support for passage, though probably not by a veto-proof margin.
At least some of the funds required to pay for the wall, if it were to be built, could come from already planned military construction projects. Federal law grants broad discretion to the secretary of defense to undertake military construction projects in a national emergency. In Feb. 27 testimony before the House Appropriations subcommittee that oversees military construction, Assistant Defense Secretary Robert McMahon said the Dept. of Defense is seeking to identify construction projects that could be used to fund the wall and related projects associated with the declared emergency.
“The department is not including in this consideration any family housing projects as funding sources,” he said in his prepared testimony. Moreover, he said DOD will seek to replenish funds for any projects deferred to pay for the wall.
But Stephen Sandherr, Associated General Contractors of America president and chief executive officer, is uneasy. AGC is concerned that shifting appropriations allocated for DOD construction projects fairly far along in the planning process could cost contractors.
In a Feb. 21 letter to acting Defense Secretary Patrick Shanahan, Sandherr said that contractors can spend millions of dollars preparing bids for a solicitation, and he urged DOD to “avoid reprogramming or transferring funds from contracts long under consideration or—most critically—actively under solicitation.”
Meanwhile, court challenges to Trump’s action are proliferating. Attorneys general from 15 states with Democratic governors, plus Maryland, whose governor is a Republican, on Feb. 18 filed a lawsuit in a federal court in California objecting to Trump’s move and the attempt to use funds appropriated by Congress for other purposes to build the wall.
Two days earlier, the Defenders of Wildlife, Center for Biological Diversity and the Animal Legal Defense Fund challenged Trump’s declaration in the federal District Court for the District of Columbia, on similar grounds.
In addition, advocacy group Public Citizen filed a lawsuit on Feb. 15 on behalf of the Frontera Audubon Society and three South Texas landowners who were told by the government that it would seek to build a border wall on their properties if money was available in 2019.
Mike Kennedy, AGC’s general counsel, says that those who expect a sweeping decision from any of the courts are likely to be disappointed. Kennedy says that much of the language in statutes that might be used to justify the administration’s case is ambiguous, and there is not a body of law established to clarify what the president’s authority is.
“I think the courts will make as narrow a ruling as they can make,” Kennedy says. “You’re going to see courts carefully parsing legislative language.”
The environmental groups contend that the border wall would harm wildlife that lives in the vicinity of the border, particularly species whose habitat bisects the border, says Jason Rylander, senior counsel with Defenders of Wildlife.
Rylander says litigants are seeking a clearer picture of where and how funds would be allocated. “The administration has made so many conflicting statements about what money was going to be used and when,” he says. Nearly $1 billion appropriated for building a border fence has not been used, he notes.
Trump invoked the National Emergencies Act and immigration law in his Feb. 15 declaration. Presidents have declared at least 58 states of emergency since the emergencies law went on the books more than 40 years ago. Most relate to sanctions or export restrictions. The recent lawsuits contend the president lacks authority to use the emergency declaration to circumvent the will of Congress to pay for the wall using funds Congress appropriated for other purposes.