Senate Minority Leader Chuck Schumer and President Trump negotiated toward a bargain on immigration reform that could have satisfied both parties and reduced the likelihood of a shutdown, the New York Times reported hours before government funding expired at midnight Saturday. Democrats would have received a DACA fix—and Trump would have received some sort of spending commitment for a southern border wall.
What type of commitment Schumer made in his closed-door meeting with the president is a point of disagreement between the two parties. According to the Times’s source, Schumer “discussed the possibility of fully funding” the wall. The White House disputed the word “fully”—budget director Mick Mulvaney said the deal was for only $1.6 billion, which amounts to a down payment on the expected cost of $20 billion. A spokesman for Schumer fired back: “Director Mulvaney was not in the lunch, and is not telling the truth. Period, full stop.”
But there’s another layer to this. Regardless of the total, did Schumer commit to a wall proposal that would cost a set amount of funds, or did he commit to actually disbursing funds? This is the difference between “authorizing” money and “appropriating” it.
“Full funding for the wall, no. What Mr. Schumer offered the president was an authorization for funding, not an appropriation,” Mulvaney told Chris Wallace on Sunday. “I know that’s deep down in the weeds for folks who don’t live in Washington, D.C., but the difference between authorization and appropriation is like night and day.” (Schumer’s office has not addressed this statement, and had not responded to an inquiry sent early Monday morning.)
In general, Congress authorizes spending before it’s appropriated. For a wall, first there would be “authorizing” legislation setting parameters for construction and perhaps specifying an amount of money that could be appropriated to satisfy the bill’s requirements. Next, Congress would appropriate funds in accordance with the legislation, if it were made law. The White House argues that spending for a wall already has been authorized.
“There was already authorization to build a wall on the southern border that Chuck Schumer voted for in 2006. It hasn’t been built because the money was never appropriated, it was never funded,” Mulvaney said.
That’s sort of true. A 2007 government funding bill directed the Department of Homeland Security, at the agency’s discretion, to “construct reinforced fencing along not less than 700 miles of the southwest border where fencing would be most practical and effective.” This directive amended a related law Mulvaney cited, the Secure Fence Act of 2006—which itself amended a section of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. That law authorized Congress to spend $12 million to carry out the relevant section. But the 2007 funding bill changed “$12,000,000” to the open-ended “such sums as may be necessary.”
Although some fencing has been built— according to multiple reports, more than 600 miles, mostly comprising single-layer barrier and roadblocks—the law makes 700 miles of it a floor, and “such sums as may be necessary” does not have a dollar limitation. There, in a bit of legislative history, is where the White House would argue it already possesses the authority to act on a “wall”—which, should it be built, likely would have see-through components, making it resemble a fence. There is no need for additional authorizing language, this argument goes. Instead, the process has reached the Rod Tidwell stage.
Regardless of how the shutdown is resolved, identifying the alleged disagreement between Schumer and the White House over what “funding” the wall means has implications for any future negotiations about the issue. With Democratic resistance, it’d be impossible for Congress to provide Trump with as much latitude for a possible project as the White House claims he already enjoys under current law.
