President Trump is wrong on both legal and policy grounds to divert $3.6 billion from already approved military construction projects for use instead in building his vaunted “wall” on the Mexican border.
Somebody with legal standing should file suit to stop him.
It’s not that the wall is a bad idea. It’s that Trump is exceeding his appropriate powers in funding it without congressional appropriation. It’s also that the projects from which he is taking the funds are important for national security and for military personnel.
On the legal front, David French at National Review Online had the best explanation back in January, which readers should study in toto. The short version is that even the National Emergencies Act, which Trump cites as his authority, limits such diversions of funds so that they can be used only for military-related functions (which the wall isn’t) and only if the other use of the money (in this case, the wall) already has been “authorized.”
That last word has a specific meaning. It means that Congress and the president together, statutorily, must have enacted bill language providing official approval for the project in question (whether or not money has been provided for it, which is a separate step in the process).
The expanded border wall has not been authorized. Therefore, the National Emergencies Act should not apply. Trump is claiming power that is not rightfully his.
The diversion of funds is not only illegal but also unwise. Those monies already had been appropriated, by duly enacted law, for military construction projects identified by both Congress and the president as being necessary. Trump is defunding or delaying projects in nearly half the 50 states, three U.S. territories, and 19 U.S. installations abroad. So much for Trump’s promise to emphasize and meet the needs of the military and its personnel.
As summarized by Vox, these projects include “a National Guard readiness center in Puerto Rico. A hazardous material storage building on a US military base in Germany. A training facility for special operations forces working to deter Russia in Europe. Upgrades at the US Military Academy in West Point, New York.”
Puerto Rico, still reeling from 2017’s Hurricane Maria, will lose $400 million in projects overall, many of which are meant to help with recovery as well as meet long-term military needs.
In all, Trump is hobbling 127 separate projects (listed here). They include weapons maintenance shops, a military-base fire-rescue station, arms ranges, a ship maintenance facility, and a flight simulator facility. Every one of these had been carefully considered, usually requested by the Pentagon. They are necessary for the training, health, and welfare of American military personnel.
Members of Congress of both parties rightly are taking umbrage at Trump’s decisions here. Utah Republican Sens. Mike Lee and Mitt Romney issued a release blasting the diversion of funds meant for two key projects in their state. Likewise Democrat Mark Warner in Virginia.
The two Utah senators have now introduced “The Article One Act,” which “would automatically end all future emergency declarations made pursuant to the NEA after 30 days unless Congress voted affirmatively to extend the emergency.” It’s a great idea. It is dangerous to let “emergency” powers linger, available for presidential misuse, long after the emergency has passed. Too much concentration of power in the executive can lead to tyranny.
The maintenance of the proper, constitutional separation of powers is far more important for long-term national survival than is construction of more miles of border fencing. Until the wall is financed by constitutional means, Trump must be stopped from trampling the barriers meant to restrain executive abuse.
