On Thursday, February 14, 2019 Congress approved a $333 billion federal budget and sent it to the President’s desk. The budget did not contain some $8 billion in funds requested for the construction of a border wall along the southern U.S. border, and there were fears that the lack of these funds may result in a veto of the budget.
But the budget was signed into law, and rather than depending on it for money to construct such a wall, the President instead declared a national emergency and announced his intention to divert federal funds from other sources to the border project.
Opposed lawmakers promised legal action to prevent diversion of such money including funds slated for military construction projects to build family housing, hospitals, and other force improvement measures. Not all the proposed diversions of federal money would come from this single source; funds from drug interdiction seizures and other federal agencies would also be included.
But for the military community, many questions arise out of any such plan to take funds and U.S. troops to build a wall along the southern border with Mexico.
How And When Will The Border Wall Be Built With U.S. Troops, And/Or U.S. Military Funds
At the time of this writing, much of the discussion about building a border wall has more to do with where the funding will come from and the nature of the wall itself, rather than concrete examples or plans on how U.S. troops might be directed to support such an operation.
But we already see signs that the Pentagon and the Department of Defense are preparing for an extended presence at the United States’ southern border.
A January 15, 2019 report by CNN observes that the Pentagon approved additional Defense Department support for the Department of Homeland Security along the southern border with Mexico; this cooperation is scheduled to last until the end of September 2019.
A Pentagon statement included the news that the U.S. military is “…transitioning its support at the southwestern border from hardening ports of entry to mobile surveillance and detection, as well as concertina wire emplacement between ports of entry.”
Whether this activity will continue as described once actual construction begins (assuming it survives numerous legal challenges including one from the American Civil Liberties Union) remains to be seen, it is entirely possible that proposals to use the U.S. Army Corps of Engineers in some fashion could be reviewed for feasibility and legality.
The Corps of Engineers has already participated in the Trump Wall project, reviewing some eight different wall project proposals for feasibility and/or other assessments. In any case, the use of U.S. troops at the border would be in a support role (that may or may not include assistance with the actual construction project), with the Department of Homeland Security responsible for any law enforcement activities which may be required.
Who Has Sent Troops To The Border Before?
In spite of the many arguments about the current border wall situation and whether or not American soldiers, airmen, marines, and other military members should be there, historically there is a precedent for sending troops to reinforce border security.
This has been done by several U.S. Presidents including George W. Bush and Barack Obama. While there are those who would make the border wall issue focus completely on the current administration, it should be pointed out that lawmakers on both sides of the aisle have supported troops going to the U.S. border in the past.
The Border Wall Funding Controversy
The government shutdown in late 2018 and early 2019 happened over a disagreement – the President wanted approximately $8 billion in border wall funding, which did not sit well with Democrat lawmakers who passed a budget without those funds. The President vetoed the budget, and threatened to declare a national emergency to get funding for the wall if another budget was sent forward without the money for the construction project.
Another budget was passed by Congress without funds for the wall as requested. This time, the President chose to avoid another partial government shutdown, sign the budget, and proceed with the national emergency plan.
Declaring the national emergency was not necessary to divert some federal funds from the U.S. Treasury and drug enforcement operations, but to obtain certain funds from military sources would require the declaration.
There is some $21 billion in “unobligated funds” lurking in military construction budgets according to several sources, including a CBS News report noting that Congress had approved $1 billion for a military medical center in Germany where wounded soldiers from Iraq and Afghanistan have been treated. This money – including the hospital funds – has not been spent.
A declaration of a national emergency technically allows the President, who is also the Commander-in-Chief of the United States military, to spend these funds in an unrestricted way as long as the use of those funds supports the military in some fashion. The legal challenges to this declaration may include the validity of declaring the situation at the U.S. border as an “emergency”.
A “Hidden” Strategy Behind Legal Challenges To The Border Wall Project?
One thing mentioned occasionally in news reports about the border wall controversy in connection with the President’s declaration of a national emergency is the time limit under Title X laws permitting the use of federal funds in a national emergency.
A report by Stars And Stripes notes that Section 2808 of Title 10 of the U.S. Code points out that “a presidential declaration under the National Emergencies Act of 1976 empowers the undertaking and funding of military construction projects” and has been used 58 times since 1976 when the law was passed.
Thirty-one national emergencies are still active according to that report. But what the report does not mention is that once appropriated, such funds are only available for five years.
Issuing repeated legal challenges could tie up the Trump Administration in proceedings for quite some time; all the while the clock is ticking on how and when the re-directed federal funds are to be used.
What Is The President Legally Permitted To Do With U.S. Troops And The U.S. Border?
Federal law prevents the use of the active duty United States Army and Air Force to conduct law enforcement on U.S. soil. This law is called the Posse Comitatus Act and mentions the active duty Army and Air Force by name, and the Navy and Marine Corps by implication.
The Air National Guard and Army National Guard are not technically affected by Posse Comitatus, but their involvement in any border wall mission in the United States would be at the pleasure of the state governor, not the President.
In general, Posse Comitatus does not have a say in how federal funds might be directed in the scenario suggested by the White House, so the budget controversy and the idea of diverting funds from military purposes do not find an answer, permission, or denial of permission in this federal law.
What Would U.S. Troops Do At The Border If They Are Not Enforcing Domestic Laws On U.S. Soil?
Construction of a border wall would require support in a variety of areas; it is not clear at the time of this writing if anyone knows of a specific detailed plan on how troops would be used. But speculation is endless; any construction project requires physical security – protection of the building site and equipment, etc.
Then there is the need for logistical support – supply lines and security of them, providing power and running water, medical support, possible housing issues for long-term construction needs, heavy machinery transport, etc.
It is highly likely that as plans for the proposed border wall solidify, more discussion of actual plans for using U.S. troops at the border will come to light; as things are at the time of this writing, there is much still to be decided strategically, logistically, and practically.
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