Border emergency hits six months; ball back in Congress’ court

Lawmakers may again try to terminate Trump's declaration allowing him to shift funds for wall construction

Speaker Nancy Pelosi and other House Democrats appear in February at a news conference on the joint resolution to terminate Trump's emergency declaration. It is not clear whether they will try again to pass a similar measure. (Bill Clark/CQ Roll Call file photo)
Speaker Nancy Pelosi and other House Democrats appear in February at a news conference on the joint resolution to terminate Trump's emergency declaration. It is not clear whether they will try again to pass a similar measure. (Bill Clark/CQ Roll Call file photo)
Posted August 15, 2019 at 8:55am

Thursday marks six months since President Donald Trump declared a national emergency on the southern border, a notable anniversary because it gives Congress another shot at ending it.

The flashpoint in the debate remains funding for the construction of a wall along the Mexican border, a prominent pledge made during Trump’s 2016 presidential bid that now hangs over the 2020 campaign.

[Emergency border funds face delays as money and time run short]

Most of the money the president would tap through his Feb. 15 emergency declaration to help build the wall would come from the Pentagon — a fact that has riled both sides of the aisle, though not enough Republicans thus far to force a change in policy.

Under the law authorizing the executive branch’s use of national emergencies, lawmakers can now hold another vote to end the emergency declaration and, Democrats would argue, assert Congress’ power of the purse.

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But it’s not clear that Democratic leaders are going to move ahead with another emergency termination vote. Such an effort has already been unsuccessful once, and the politics of the issue don’t appear to have materially shifted since then.

[House fails to override Trump’s veto of resolution ending his border emergency]

Washington Democrat Adam Smith, chairman of the House Armed Services Committee, said he still opposes Trump’s emergency declaration, but he is not sure what the best way to proceed is. A resolution to terminate the emergency would likely pass again, he said, but probably without the votes needed to override a veto.

Such a vote “would accurately reflect the position of Congress,” he said. “The position of Congress is that this authority has been misused, and the funds should not come out of the Department of Defense.”

Smith said his next move will be informed by conversations with Democratic colleagues representing border districts, such as fellow Armed Services Committee members Veronica Escobar of Texas, Ruben Gallego of Arizona and Xochitl Torres Small of New Mexico.

“I’m very clear on what my position is, what is the best path is, what we still need to discuss,” he said. “What I want is them to not take money from the Pentagon for border security issues.”

Fool me once…

Lawmakers tried earlier this year to terminate the border emergency with a resolution that passed both chambers only to be met by a Trump veto.

In March, 12 Senate Republicans joined 45 Democrats and two independents to back the resolution, well short of the 67 votes required to override a veto. On the House override vote, just 14 Republicans crossed the aisle to oppose Trump, and the 248-181 tally wasn’t enough to meet the required two-thirds threshold.

After Congress provided only $1.3 billion of the $5.7 billion the White House requested for wall funding for fiscal 2019, Trump used the 1976 national emergencies law to make available up to $6.7 billion in previously appropriated funds if needed for the wall-building project.

That amount includes $3.6 billion in unobligated military construction funds subject to the congressional termination resolution. The remainder, including an additional $2.5 billion in Pentagon counterdrug funds and $601 million collected from Treasury asset seizures, is available through other statutes and not subject to the emergency order.

Critics call Trump’s maneuver an end-run around congressional appropriations authority. But in July, the Supreme Court allowed the administration to move ahead with four border wall contracts involving the $2.5 billion in Pentagon funds accessed through drug interdiction accounts. The 5-4 decision, tipped in the administration’s favor by the high court’s conservative justices, said groups seeking to block the White House’s authority didn’t have standing to challenge the move.

Congress, however, seems less enthusiastic about funding the border wall, either directly or indirectly. House appropriators did not provide any funds for the wall in their fiscal 2020 appropriations bills. They’ve also sought to restrict the administration’s use of transfer authority through a number of spending bill riders.

“House appropriators did not provide any funding for physical barriers in our fiscal year 2020 bills, and we believe that we should fund real priorities instead of this political vanity project,” House Appropriations Chairwoman Nita M. Lowey, a New York Democrat, said in a statement.

Senate appropriators have not yet drafted their fiscal 2020 funding bills, and the path forward in that chamber is unclear.

In its annual defense policy bill, the Senate authorized backfilling the $3.6 billion in prior-year funds tapped for the wall, but did not approve the additional $3.6 billion in fiscal 2020 funds.

In the House’s version, lawmakers limited the Pentagon’s ability to move money around within a fiscal year, capping the amount at $1 billion, well short of what the Pentagon says it needs to manage its $700 billion-plus budget effectively.

However, the two-year budget deal struck just before Congress left for the August recess stipulates that Congress cannot change the Pentagon’s ability to transfer funds without bipartisan agreement.