Wednesday, April 24, 2019
The House of Representatives yesterday applied for a preliminary injunction to halt President Trump's reallocation of appropriated funds to build a border wall.
The application notes that Congress, not the president, has the appropriations powers, and argues that the president lacks statutory authority to reallocate funds after Congress specifically rejected his request for funding through the appropriations process.
There are two statutes at issue. The first, 10 U.S.C. Sec. 284, says that "[t]he Secretary of Defense may provide support for the counterdrug activities . . . of any other department or agency of the federal government" if "such support is requested by the official who has responsibility for the counterdrug activities . . . of the department or agency of the Federal Government" for the purposes of "[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States."
The administration already transferred $1 billion that Congress appropriated for other purposes, and it plans to transfer another $1.5 billion.
The House argues that the Secretary's authority is limited by Section 8005 of the 2019 DOD appropriations act. That section says that the Secretary of Defense may
transfer not to exceed $4,000,000,000 of working capital funds of the Department of Defense or funds made available in this Act to the Department of Defense for military functions (except military construction) between such appropriations or funds or any subdivision thereof . . . : Provided, That such authority to transfer may not be used unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress.
The House argues that under Section 8005 the administration's reallocation is not "for higher priority items, based on unforeseen military requirements"; that the reallocation is not in a case "where the item for which funds are requested has been denied by Congress" (because Congress denied the administrations request for wall funding); and that wall funding is not for "military construction."
The second statute, 10 U.S.C. Sec. 2808, provides that
In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act that requires use of the armed forces, the Secretary of Defense . . . may undertake military construction projects . . . not otherwise authorized by law that are necessary to support such use of the armed forces.
The House argues that President Trump's declaration of a national emergency doesn't "require the use of the armed forces"; that the wall isn't a "military construction project"; and that the wall isn't "necessary to support [the] use of the armed forces." The House doesn't challenge the president's declaration of an emergency, though.