Bills
| 3.23.22

Should Congress Prohibit the President From Redirecting Military Construction Funds by Declaring a National Emergency? (S. 2705)

Do you support or oppose this bill?

What is S. 2705?

(Updated April 29, 2020)

This bill — the Stopping Executive Overreach on Military Appropriations Ac — would require Congressional approval before the president can redirect military construction funds during a national emergency. It would amend existing law to require that Congress enact a joint resolution approving spending under the 2808 authority (a provision in existing law that lets the president to reprogram unspent funds that Congress has already appropriated for specific military construction projects) during a period of national emergency. Without this Congressional approval, no military construction funds could be transferred, no existing projects curtailed, and no new projects undertaken. This section wouldn’t apply in the case of a declaration of war.

Additionally, this bill would prohibit defense money from being used to build President Trump’s promised border wall and immediately rescind the $3.6 billion dollars that President Trump rerouted from military construction funds to build it, returning those funds back to their respective projects. 

Finally, this bill would direct the Office of Government Ethics (OGE) to review all current and former contracts related to President Trump’s border wall. This would be to determine whether the president, his family, or his top lieutenants would personally benefit from such contracts or whether there’s a conflict of interest.

Argument in favor

The Trump administration’s attempt to divert funding from other military projects to build the border wall jeopardizes over 120 important military projects and endangers overall U.S. readiness. This bill would reverse that decision, return funding to important military priorities, and ensure that such a situation won’t happen in current or future administrations.

Argument opposed

The Trump administration was within its rights to move military funds around to fund the border wall, and Congress should respect the authority it gave the executive branch to set national security priorities. While it’s important to spend on other military projects, the border wall is an urgent priority, so it’s justifiable to pull funds from other military spending to fund its construction.

Impact

U.S.-Mexico border; southern border states; U.S. military; U.S. military funding; U.S. military spending diverted to construct the southern border wall; military spending approval process; emergency declarations; Congress; the Office of Government Ethics (OGE); and Congress.

Cost of S. 2705

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sponsoring Sen. Patty Murray (D-WA) introduced this bill in response to President Trump’s attempt to use military construction funds to build his southern border wall: 

“The President’s decision to use a phony emergency declaration to take money away from our servicemembers and their families is a gross abuse of executive power that hurts military families in my state and others, and puts our nation’s security at risk. We’re taking action to not only reverse President Trump’s reckless decision to ransack funds for critical military priorities and infrastructure projects that help keep our country safe, such as the pier and maintenance facility at Naval Base Kitsap in my home state of Washington, but also to make sure no President going forward can take reckless, harmful steps like this one.”

In an October 24, 2019 interview with the , Sen. Murray said that this isn’t just about the Trump administration. Rather, she said, “I think it’s time for Congress to reassert itself. Not just for this president but for the next person in office." 

Senate Minority Leader Chuck Schumer (D-NY), who is an original cosponsor of this bill, adds: 

“President Trump has very clearly attempted to usurp the power of the purse—given exclusively to Congress by the Constitution—by taking funding from military projects we’ve approved and giving it to projects Congress has repeatedly rejected. Not only does this brazen power grab detract from military readiness, it directly affects the wellbeing of service members and their families who already sacrifice so much to defend our liberty. The president’s unscrupulous actions require Democrats and Republicans in Congress to re-assert our constitutional authority and pass legislation barring any future president from abusing emergency powers to divert funds appropriated for our military service members.”

Jewish War Veterans of the United States of America (JWV) supports the portions of this legislation that would require President Trump and all future presidents to seek Congressional approval before redirecting military funds during a national emergency; prohibit military funds from being used to build a wall along the U.S.-Mexico border; and return $3.6 billion taken for the wall to the military construction projects for which it was originally allocated. The organization says: 

“From the beginning, JWV has strongly opposed the Trump administration’s efforts to divert military funding to aid with the construction of the wall, which is not a military project, along the border. President Trump’s unilateral declaration of a national emergency does not justify him diverting funds from the military construction budget for the wall.”

Defense Secretary Mark Esper argues that diverting military funds for other projects to the southern border wall’s construction will free up military personnel that have been deployed at the border to increase security in areas without physical barriers. In a September 3, 2019 letter to Senate Armed Services Chairman Jim Inhofe (R-OK), Esper argued that the barriers build with the diverted military funds “will allow DoD to provide support to DHS more efficiently and effectively.” Therefore, he reasoned, “the contemplated construction projects are force multipliers."

UC Berkeley law professor and American Enterprise Institute (AEI) visiting fellow John C. Yoo and Matthew Peterson, Vice President of Education and Salvatori Research Fellow at the Claremont Institute, argued in favor of moving funds for the border wall in a September 8, 2019 op-ed. They also contended that the Supreme Court would ultimately side with the administration on this issue: 

“The Constitution does not prevent President Trump from moving federal funds to build a wall on the southern border — and the Supreme Court will not rule otherwise… [T]hose on the Left and Right who oppose the president’s actions in good faith are either wrong or confused about the nature of presidential power and congressional delegations of authority… If presidents are to protect America and execute its laws, they must have the ability to identify an emergency. Throughout our history, presidents have understood the Constitution’s grant of ‘the executive power’ to include such a power… In the judgment of President Trump and, presumably, many of those who elected him, our immigration laws at the border have failed.  Even the New York Times and other media critics of the president have called the situation at the border an “emergency.” As commander-in-chief, the president has already ordered 3,000 troops to defend the integrity of the border. This recalls the U.S. Army to its roots — safeguarding the frontier. Congress long ago blessed presidential authority to follow up an emergency declaration with deeds… Not only do presidents have a reservoir of constitutional authority to respond to emergencies, but Congress has also enhanced it with the right to re-allocate military spending. Congress has passed at least two specific laws that give the president the power to transfer funds to a construction project, such as a wall, after a declaration of emergency.”

This legislation has four Democratic cosponsors. Sen. Murray acknowledges that this bill likely won’t pass the GOP-controlled Senate. However, in an October 24, 2019 interview, she also told the that there are lawmakers of both parties who are interested in halting the border wall funding and returning it to the military projects it was taken from.


Of Note: After President Trump’s emergency declaration at the southern border in February 2019, Secretary of Defense Mark Esper announced that $3.6 billion dollars of appropriated military construction funds would be diverted to pay for the President’s border wall in 11 projects in San Diego, California; El Paso, Texas; Yuma, Arizona; and other areas. To do this, Secretary Esper invoked the “2808 authority,” which allows the president to reprogram unspent funds that Congress has already appropriated for specific military projects.

This decision affects 127 military construction projects in 26 states and territories. According to a list obtained by NPR, some of the domestic projects include: 

  • Some funding for the Military Academy at West Point;
  • $10 million of funding for Virginia’s Cyber Operations Facility at Joint Base Langley-Eustis;
  • Over $26 million for the Navy Ships Maintenance Facility in Portsmouth, New Hampshire; and
  • Over $41 million for projects to replace hazardous materials warehouses in Norfolk, Virginia and Portsmouth, New Hampshire.

In response to the decision, Senate Minority Leader Chuck Shumer (D-NY) called the decision “a slap in the face to the members of the armed forces who serve our country that President Trump is willing to cannibalize already allocated military funding to boost his own ego and for a wall he promised Mexico would pay to build.” Sen. Schumer added that Trump was trying to “usurp Congress's exclusive power of the purse and loot vital funds from our military."

House Speaker Nancy Pelosi (D-CA) expressed concerns that the decision would affect national security, saying, “My view of it is that stealing money from military construction, at home and abroad, will undermine our national security, quality of life and morale of our troops, and that indeed makes America less safe.”

Sen. Martha McSally (R-AZ), whose home district will lose $30 million in project funds for a ground transport building at Fort Huachuca, downplayed the funding loss. She said it’s a small fraction of the overall $3.6 billion, and that the diversion is needed for national security. She also pointed out that the money could be backfilled in other spending legislation. Ultimately, McSally argued, “We need to secure our border and protect our military; we can and should do both.”

In July 2019, the Supreme Court overturned an appellate decision and ruled that the Trump administration could tap money to proceed with wall construction while litigation against the wall itself proceeds. In that ruling, the Court said that the groups challenging the administration didn’t have the legal right to do so; this was viewed as an indication that the Court’s conservative majority will eventually side with the administration on the issue of the wall.

The Washington state attorney general sued the Trump administration over the revocation of funds for a project at Naval Base Kitsap-Bangor in Bangor, Washington. The base had been slated to receive $88.9 million in funding to build a new pier to dock Coast Guard vessels that protect the military’s Trident ballistic missile submarines. 

On October 31, 2019, the Senate failed to advance a defense spending bill for 2020 due to partisan differences over the president’s use of military funding for the border wall. The spending package — which includes spending for the Depts. Of Defense (DOD), Labor (DOL), and Health and Human Services (HHS) — failed on a 51-41 procedural vote (it needed 60 votes to pass). 

Sen. Patrick Leahy (D-VT), the top Democrat on the Senate Appropriations Committee, said Democrats’ opposition stemmed from concerns over shortchanging domestic programs and shifting defense spending away from military construction projects in favor of President Trump’s southern border wall. Calling Trump’s efforts to shift funds a “cash grab,” Sen. Leahy said, “We oppose this bill because we are fighting to protect funding for the men and women in uniform.”

In return, Senate Majority Leader Mitch McConnell (R-KY) accused Democrats of being too preoccupied with the presidential impeachment inquiry to fund the military. In a Senate floor speech, he said, “Washington Democrats have talked up a storm in recent days, criticizing the Trump administration’s approach to Syria and the Middle East. Lots of talk. But apparently they are not concerned enough about the Middle East and fighting ISIS to actually vote for the funding that keeps those missions going.”


Media:

Summary by Lorelei Yang

(Photo Credit: iStockphoto.com / Michael Vi)