WASHINGTON — Amid reports U.S. President Donald Trump is drafting a national emergency declaration to divert Pentagon funds for his border wall, some Democrats are working to turn this path into a dead end.
Fifty-one House Democrats signed a letter, led by Rep. Jan Schakowsky, D-Ill., to House Armed Services Committee Chairman Adam Smith, D-Wash., asking that Smith use the fiscal 2020 National Defense Authorization Act to assure the administration “cannot utilize a fake ‘national emergency’ to co-opt the military into the construction of the President’s wall.”
“A President’s war powers are the most serious powers held by the Commander in Chief and should never be utilized for political stunts, only genuine national security emergencies,” said a draft of the letter obtained by Defense News. “As you know the Constitution gives the House the power to appropriate federal funds. Spending funds on a wall Congress has not authorized is a violation of the Anti-Deficiency Act as well as a violation of separation of powers."
The letter being circulated has been signed by Reps. Mark Pocan, D-Wis., and Pramila Jayapal, D-Wash., who co-chair the Congressional Progressive Caucus; Homeland Security Committee Chairman Bennie Thompson, D-Miss.; Rules Committee Chair Jim McGovern, D-Mass.; HASC Readiness Subcommittee Chair John Garamendi, D-Calif.; and Hawaii Democratic Rep. Tulsi Gabbard, an HASC member who’s seeking the Democratic presidential nomination in 2020.
In an interview Thursday, Schakowsky argued that Trump cannot legally use the national emergency authority to free up taxpayer funds to build the border wall he has long promised his political supporters.
“The NDAA has to be clear how the money can be spent and not spent,” Schakowsky said. “We feel the president doesn’t have the authority to use DoD resources to build a wall anyway, but we want to make it clear, because this president doesn’t seem to understand what’s in the law and where the prerogatives of the Congress come in.”
The authorization bill is not expected to be passed until late this year, but if Trump proceeds with the declaration, it will likely be challenged in court and by Democrats in Congress, which could delay implementation of the administration’s potential plans.
Talks continued Friday between Trump and lawmakers over border wall funding and a proposal to reopen the government, but hundreds of thousands of federal workers — who have been furloughed or forced to work without pay — were on track to miss a second paycheck as the shutdown stretched into its 35th day.
The president has not ruled out using his executive powers as a means to bring an end to the impasse, telling reporters Thursday he has “other alternatives.”
“I have other alternatives if I have to, and I’ll use those alternatives if I have to,” he said. "A lot of people want this to happen. The military wants this to happen. This is a virtual invasion of our country.”
The White House was preparing a draft proclamation for Trump to declare a national emergency along the southern border and has identified more than $7 billion in potential funds for his signature border wall, should he go that route, CNN reported Thursday, citing internal documents.
Options under consideration that the administration could choose, according to CNN: $681 million from Treasury forfeiture funds, $3.6 billion in military construction, $3 billion in Pentagon civil works funds, and $200 million in Department of Homeland Security funds.
According to CNN, if the declaration is made, the Army Corps of Engineers would be deployed to construct the wall, which could partly be built on private property and would therefore require the administration to seize the land, which is permitted if it’s for public use.
Smith was already likely to take action through the FY20 NDAA before the letter. Earlier this month, he announced his adamant opposition to the idea of an emergency declaration, calling it a “legal gimmick,” an abuse of the president’s authority and a hindrance to military readiness.
His first hearing as chairman, on Jan. 29, will be about the Defense Department’s deployment of 5,900 active-duty troops and 2,100 National Guard forces to the U.S.-Mexico border.
The Senate Armed Services Committee’s top Democrat, Sen. Jack Reed, issued a statement Thursday that questioned Trump’s claim the military favors the border wall, since it is absent from the Pentagon’s National Security Strategy.
“President Trump should stop trying to use our military as a prop,” said Reed, of Rhode Island. “The Defense Department produced a National Security Strategy for the President that in no way backed up his claim that: ‘The military wants this [his wall] to happen.’ If that is the case, the acting Secretary of Defense [Patrick Shanahan] might want to tell Congress what changed so suddenly that military funds must be raided.”
Calling the potential move drastic and constitutionally questionable, Reed said Trump could set a precedent for future presidents to “employ this tactic on all manner of ‘emergencies’ in order to fund their pet projects."
“President Trump needs to stop and think twice before declaring a bogus border emergency,” Reed said.
Joe Gould is the senior Pentagon reporter for Defense News, covering the intersection of national security policy, politics and the defense industry. He served previously as Congress reporter.