Congressional Democrats are looking to block President Trump from spending $6.7 billion in the federal budget to build physical barriers along the southern border, but they may lack a legislative path to thwart much of it.
The House Judiciary Committee is writing a resolution to rescind the National Emergency Act declaration Trump announced Friday. But of the $6.7 billion Trump wants to repurpose for the wall, nearly half that amount, $3.1 trillion, is being moved under laws other than the National Emergency Act, and Congress appears to have no way of stopping him.
Trump already has the authority to move $2.5 billion seized from drug interdiction programs operated by the Defense Department, without declaring a national emergency. According to a senior Democratic aide, the president “has broad authority” under the law to shift this money to projects that would interrupt drug smuggling corridors.
Trump will likely transfer the drug interdiction money to the Army Corps of Engineers, which will build barriers along the parts of the southern border identified as areas where drug smuggling occurs.
Trump also plans to shift $600 million from the Treasury Forfeiture Fund which pays for “programs and activities aimed at disrupting criminal enterprises.” That money comes from assets seized in drug arrests and banks that have committed sanctions violations and other crimes. The president can also transfer that money to the border for a wall by declaring the move is for law enforcement purposes, without declaring a national emergency.
As a result, Congress appears able to fight only the $3.6 billion Trump is seeking under the National Emergency Act, although that portion of Trump’s plan could face a court challenge. Court cases might also be used to attack the $3.1 billion Trump is seeking.
Lawmakers could take action soon after lawmakers return from a weeklong break, although Democratic leaders have not announced their plan. Under the National Emergency Act, Congress can vote to disapprove of a president’s emergency declaration, although the president can also veto that resolution and force Congress to override him.
The White House said Friday that Trump plans to use a national emergency declaration to siphon $3.6 billion from the Defense Department’s military construction budget, which pays for a wide array of projects on military bases and installations in the United States and around the world.
The administration cites a law governing “construction authority in the event of a declaration of war or national emergency.” It allows the president to order the military to cancel a project, such as an aircraft hanger or military housing, for example, if it is to support a different military operation. In this case, the funding would shift to the border, where Trump has repeatedly stated a crisis is unfolding as surges of illegal immigrants try to cross into the United States.
But Democrats, who oppose border barriers and have anticipated the national emergency declaration from Trump, have been making the case that they do not believe there is a crisis on the border and will challenge the president on these grounds with a joint resolution of disapproval. House Majority Leader Steny Hoyer, D-Md., said he came to that conclusion after visiting several southern border cities to meet with government officials.
“The most dramatic thing we found was, there is no crisis at the border,” Hoyer said.
He also pointed out the director of national intelligence, Dan Coats, “did not mention the southwest border” in his list of crisis points confronting the country.
Reps. Alexandria Ocasio-Cortez, D-N.Y., and Joaquin Castro, D-Texas, said they will introduce a resolution to rescind the emergency declaration. Castro said Trump is usurping congressional authority “based upon unfounded hype rather than any substantive emergency.”
House Speaker Nancy Pelosi, D-Calif., has not announced a decision on resolution language, timing, or which measure she will bring to the floor. She told reporters on Thursday Democrats are weighing different options to try to stop Trump.
Pelosi may take up a resolution authored by Judiciary Committee Chairman Jerry Nadler, D-N.Y. He is working on the resolution language and is determining how House Democrats can block the president in court.
“I will fully support the enactment of a joint resolution to terminate the President’s emergency declaration, in accordance with the process described in the National Emergencies Act, and intend to pursue all other available legal options,” Nadler said. “The Judiciary Committee will also use its authority to hold the Administration to account and determine the supposed legal basis for the President’s actions.”
A resolution to rescind the national emergency declaration would easily pass the House, and many lawmakers in both chambers believe it would pass the Senate, where Republicans are in the majority but only 51 votes would be needed.
The president is likely to veto such a resolution, and it would require two-thirds majority to override it in either chamber, which is a much higher and more difficult threshold for Democrats to achieve in their effort to block more border barriers.
While some Republicans have announced opposition to Trump’s national emergency declaration, it would require 50 Republicans in the House and 20 Republicans in the Senate to join all Democrats in each chamber to provide the numbers needed to override Trump’s veto.
Rep. Mark Meadows, R-N.C., predicted Friday, “The votes will not be there.”
