The Pentagon has “no legal authority” to fund President Trump’s proposed wall along the southern Mexico border, two Democratic senators told Defense Secretary Jim Mattis on Monday.
Trump had floated the idea in a tweet earlier this month of the military paying for the border wall, which is estimated to cost about $25 billion, and the Pentagon confirmed last week that Mattis discussed it with the president. But Sens. Dick Durbin, D-Ill., and Jack Reed, D-R.I., said they don’t agree.
“We conclude that the Department of Defense has no legal authority, with or without a reprogramming request, to use appropriated funds for the construction of a border wall,” the two senators wrote in the letter. Durbin is the ranking member on the Senate Appropriations defense subcommittee and Reed is the top Democrat on the Armed Services Committee.
An omnibus appropriation bill passed last month and grudgingly signed by Trump doles out $700 billion for defense. It gives the Pentagon its largest year-to-year funding increase in 15 years after military leaders warned about overworked forces and aging equipment.
Trump threatened to veto the appropriations bill because it did not include enough funding for the southern border wall, which he has called for since he was a candidate. But he relented and said the bill supplied needed funding for the military.
Durbin and Reed asked Mattis respond to the letter with his own views about the use of Pentagon funds for the wall.
They say shifting the military funding, which is called reprogramming, would have to go to the same purposes, and any transfer would have to be for higher priority military requirements.
“In other words, a reprogramming request cannot create a new purpose for any funds, all reprogrammings must be for unforeseen military requirements, and a reprogramming cannot undo a rejection by the Congress of funds for a certain purpose,” Durbin and Reed wrote.
As an example, the letter noted that the George W. Bush administration requested funding in 2006 and 2008 for Operation Jump Start. As part of that program, the National Guard assisted the Department of Homeland Security to build roads and fences along the border.
But the effort required Congress to specifically appropriate $955 million after Bush signed a budget amendment request, Durbin and Reed said.
That “indicated that the Department of Defense had no inherent legal authority to use appropriations for those more limited purposes at the time the president made the request,” they told Mattis.
