The Department of Defense Cannot Build a Border Wall, Emergency or Not

[dalton99a]

https://slate.com/news-and-politics/2019/01/trump-border-wall-military-congress-shutdown-emergency.html

The Department of Defense Cannot Build a Border Wall, Emergency or Not
Agencies can’t act without funding, and there is no funding for a border wall.
By Sam Berger
Jan 09, 20192:59 PM

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The president wants to use emergency powers to build the wall because Congress has not provided funding for it, meaning that any attempt by the Trump administration to do so would result in serious legal consequences. The Constitution requires that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” This requirement is reaffirmed in the Anti-Deficiency Act, which states that government employees may not “make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation.” Any action by an executive branch agency necessarily requires funding, at the very least the salary paid to the individual carrying that action out.

When a government employee violates the ADA, the head of the agency is required to submit a report to the president and Congress detailing the violation and the actions taken. The ADA specifies that individuals who violate the law are subject to administrative discipline, including “suspension from duty without pay or removal from office.” For knowing and willful violations, there are criminal penalties, including up to two years in prison.

In an attempt to sidestep the lack of funding, Trump has proposed invoking emergency authority. Specifically, he reportedly wants to exercise emergency military construction authority pursuant to 10 U.S.C. Sec. 2808, which states that:

In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C. 1601 et seq.) that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces. Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated.

The National Emergencies Act sets forth the procedures for declaring a national emergency and for fast-track congressional review of that determination. (The law was passed in the wake of Nixon’s abuse of emergency authorities.) The authority is broad, with no specific definition as to what constitutes a national emergency. However, the declaration of a national emergency to justify emergency military construction is rare; the only recent instance in which a president invoked the provision domestically was after the terrorist attacks on the World Trade Center and Pentagon on Sept. 11, 2001, to do work on “military installations storing sensitive materials or demilitarized chemical weapons.”

While the National Emergencies Act provides broad authority to declare a national emergency, simply saying he thinks something is a national emergency does not provide Trump with the authority to build a wall. In order to use emergency military construction authority, there must in fact exist a national emergency “that requires use of the armed forces.” In other words, beyond declaring simply that a national emergency exists, the executive branch must be able to show that the emergency at issue necessitates use of the armed forces.

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[Wellstone ruled]

1. Believe there is a 1970 treaty in place

that deals with issues along the border.