By Lauren Rodriguez (PO’22)
The U.S.-Mexico border is one of the hottest topics, yet perhaps one of the least understood, of today’s political discussion. Most Americans have heard by now that if the border is to be closed, we’re at risk of running out of avocados. But perhaps more pressingly, what are the constitutional implications of closing the border? And is it an example of illegal executive overreach?
The controversy over the border, a long-running hot-button issue, further intensified in February of this year. After Congress refused to allot President Trump his requested $5.7 billion to build a border wall, leading to the longest government shutdown in American history, President Trump officially declared a national emergency at the U.S.-Mexico border in an effort to secure funds for the wall while circumventing Congress.
However, House Democrats are pushing back, arguing that the president’s actions are not only an unwarranted declaration of national emergency but are also unconstitutional. Nancy Pelosi, Speaker of the House, explained in a statement that “The president’s action clearly violates the Appropriations Clause by stealing from appropriated funds, an action that was not authorized by constitutional or statutory authority.” Pelosi’s words echo the official lawsuit filed by the House, which states that “the Constitution forbids the expenditure of any public funds by any branch of the Federal Government, including the Executive Branch, without enactment of a law appropriating such funds.” Article I, Section 9, Clause 7 in the Constitution, commonly known as the Appropriations Clause, forms an important bulwark in the system of checks and balances; it allows the legislative branch to curb the power of the president and is a key clause that establishes Congress’s “power of the purse.”
In an attempt to get around the requirements of the Appropriations Clause, The Trump administration is mounting a legal argument that draws on statutes granting the Secretary of Defense increased money-transferring power in certain circumstances. In order to best understand the administration’s legal defense of their actions, we must further investigate the basis of these statutes.
Title 10, Section 284(b)(7) of the U.S. Code authorizes the Secretary of Defense—currently Patrick M. Shanahan—to provide funds for the “construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” Congress has appropriated approximately $2.5 billion into counterdrug activities—not for the border wall—that the Trump administration is now attempting to transfer to its funds for the construction of the wall. To bolster the legitimacy of its transfer, the administration is referencing Section 8005 of the 2019 Department of Defense Appropriations Act, an annual bill that provides money for the Department of Defense for each fiscal year. Section 8005 allows the Secretary of Defense to “transfer not to exceed $4,000,000,000 of working capital funds of the Department of Defense… for military functions (except military construction).” The administration argues that the clause authorizes the $2.5 billion transfer. Under closer inspection, however, this defense appears flimsy. While it is true that Section 8005 can be used to authorize transfers into the drug interdiction fund, it is expressly stated to not apply in cases “where the item for which funds are requested has been denied by the Congress.” And Congress has, of course, repeatedly denied President Trump’s request to fund the border wall.
Section 2801(a), also cited by the Trump administration’s defense, is directly related to President Trump’s declaration of a national emergency. It states that in the event of a national emergency, the Secretary of Defense “may undertake military construction projects.” A military construction project, in this instance, includes work “necessary to produce a complete and usable facility or a complete and usable improvement to an existing facility.” A facility is then defined in section (c) as “a building, structure, or other improvement to real property.” Additionally, under Section 2801(a), the project must also be “necessary to support the use of the armed forces,” a requirement which the border wall does not appear to satisfy. According to Ryan Burke of the Modern War Institute, military members deployed to the wall are prohibited from law enforcement activities including searches, seizures, arrests, using a weapon, “operating, manning, or staffing checkpoints,” and pursuit of individuals, among others. Hence, there is no clear link between the border wall and the use of the armed forces.
After analyzing the text of both laws, there is a clear contradiction in the Trump administration’s legal argument for a border wall. Is the wall military construction or not? It remains unspecified. Drawing on Section 2808(a) of the U.S. Code directly contradicts Section 8005: whereas Section 8005 allows for the transfer of funds “except for military construction,” Section 2801(a) allows the Secretary of Defense to transfer only funds for “military construction.” This muddles the administration’s legal argument and makes it unclear whether they deem the border wall as an instance of military construction or not. The contradiction weakens the administration’s legal argument, showing that its foundation is built on shaky ground. Indeed, it suggests the administration’s lack of conviction in the strength of their own argument and perhaps indicates that the Trump legal team is grasping at straws to find a valid justification for overstepping the Appropriations Clause.
Under close scrutiny, therefore, the Trump administration’s legal justification for its actions appears to fall apart and does not seem grounded in constitutional law. In addition, President Trump has admitted freely that the wall could be constructed “over a longer period of time,” commenting, “I didn’t need to do this. But I’d rather do it much faster.” By the president’s own admission, the border wall does not constitute a national emergency. It is difficult to see how his argument will hold up in court, but as of now, Congress and President Trump appear to be at a stalemate.
This case will likely remain an ongoing battle for quite some time. In fact, many legal scholars speculate that the border wall debate may not be resolved until it reaches the Supreme Court in a potential showdown between Chief Justice John Roberts and President Trump. In the meantime, the Trump administration will likely continue searching the lawbook for legal defenses to their actions and Congress will continue to push back, posing a test to the system of checks and balances. It remains unclear as to which governmental branch will ultimately prevail