- The Washington Times - Thursday, February 14, 2019

President Trump has a pool of roughly $21 billion in military construction funds he can use to build the border wall by emergency declaration, congressional aides said Thursday — though much of that is already destined for other projects that would have to be put on hold.

The White House said Thursday that the president will follow through on his threat to declare an emergency, using the Pentagon to build fencing and circumventing a Congress that just denied him most of the money he had sought.

Fox News reported Mr. Trump will end up with about $8 billion in wall money, with $600 million coming from a Treasury Department forfeiture fund, $2.5 billion from Pentagon drug interdiction money and $3.5 billion from the military construction budget. He will get $1.375 billion from the bill Congress approved.

“The president is once again delivering on his promise to build the wall, protect the border, and secure our great country,” White House press secretary Sarah Huckabee Sanders said.

Howls erupted from Capitol Hill, where Democrats and some Republicans said the move would spark a constitutional crisis. One activist group said it was worthy of impeachment.



Legal challenges, and a vote to overturn the president’s move are both anticipated.

“This is a gross abuse of power that cannot be tolerated,” said House Judiciary Committee Chairman Jerrold Nadler.

But Republican House leaders have said they’ll rally the votes to back Mr. Trump.

Details on Mr. Trump’s plans were scanty, and it wasn’t clear where he would build the wall, whether he will use new designs, or whether he’ll be able to overcome private property and environmental hurdles that have plagued past rounds of wall-building.

It wasn’t clear how much money he would need, where he would build the wall, whether he will use new designs, or whether he’ll be able to overcome private property and environmental hurdles that have plagued past rounds of wall-building.

The first test for the president will be to craft a convincing rationale for the emergency — though he’s been making the case for months that a surge of migrant caravans reaching the border, drugs flowing across, and a perceived connection between illegal immigration and crime in U.S. cities is enough of a reason.

The president had teased an emergency declaration for months, though he said he’d rather have Congress cooperate on trying to find a funding agreement.

Instead Congress, in a new deal this week, gave him only about a quarter of the money he asked for — and added insult to injury by placing numerous restrictions on where he can build, what he can build and when he can build.

His emergency powers could circumvent all of that.

Foremost, it gives him access to money Congress already approved in the Pentagon’s military construction budget. Roughly $10 billion is available in this fiscal year’s budget, and another roughly $11 billion is available in unobligated funds from the past five years’ military construction budgets.

The money has generally been designated for specific projects but the funds so far have not been awarded and no contracts signed, congressional aides said.

In some cases, pulling those funds could, in theory, result in half-completed facilities, if for example contracts have been signed for one portion of a construction project but not another.

“He’s free to spend it without a vote from Congress,” a congressional aide said. “He has to notify Congress of what he’s done, but he doesn’t have to come to Congress to do it.”

In addition to the $21 billion, another $800 million in counter-drug money is also immediately available, aides said.

As for the suddenly unfunded projects, congressional aides said they will have to “start anew” and Congress would have to specifically appropriate new money for those projects in the upcoming budget.

The White House insisted it is on firm legal footing for an emergency declaration, though Ms. Sanders said there shouldn’t be any.

“The president’s doing his job. Congress should do theirs,” she said.

Just as important will be surviving an expected vote in Congress.

Under the National Emergencies Act, Congress can try to pass a resolution disapproving of his declaration.

To pass it takes just a majority vote in each chamber, but Mr. Trump can veto that move, and it would take two-thirds votes in each chamber to override him.

Some prominent Republican senators said they might vote against the president.

“We have a crisis at our southern border, but no crisis justifies violating the Constitution,” said Sen. Marco Rubio, Florida Republican.

Sen. Rand Paul called the declaration “extraconstitutional.”

But even if there are enough votes to overturn the president in the Senate, getting a two-thirds vote in the House could be tough.

Minority Leader Kevin McCarthy last week said there will be enough Republicans backing Mr. Trump to sustain him.

Emergency declarations are nothing new.

Some 30 declarations, dating back to President Jimmy Carter’s 1979 move to block Iranian property in the wake of the hostage crisis, remain in effect today.

Most of those declarations, however, involve imposing sanctions on international bad actors, and critics said Mr. Trump’s plan to claim an emergency in order to move around money earmarked by Congress would be unprecedented.

The outcry over Mr. Trump’s move is similar to, though more bipartisan than, the opposition when President Obama reversed himself and declared he did have powers to grant a deportation amnesty to hundreds of thousands of illegal immigrant “Dreamers.”

Seven years later, that DACA policy is still being fought out in the courts.

House Speaker Nancy Pelosi on Thursday said if Mr. Trump’s move succeeds, it would create a new precedent future presidents will use.

She specifically suggested guns as an area where a Democratic president might try an end-run around Congress.

“Because if the president can declare an emergency on something that he has created as an emergency, an illusion that he wants to convey, just think of what a president with different values can present to the American people,” she said.

She continued: “You want to talk about a national emergency, let’s talk about today, the one-year anniversary of another manifestation of the epidemic of gun violence in America. That’s a national emergency”

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