So, imagine that Donald Trump were to win re-election in November, and also win supermajorities in the House and Senate. What would U.S. border and migration policy look like?
It would look pretty much like it does today. The White House has seized on the COVID-19 emergency to ram through most of its border-security and immigration agenda by fiat. And it’s doing it in ways that threaten to spread the virus: at home, in Mexican border towns, and in Central America.
The Trump administration will be taking $7.2 billion out of the Defense Department’s budget this year to pay for building a wall along the U.S.-Mexico border. (Very little of that money will get spent if he loses in November.) He’s been able to move some of that money into his wall—even though Congress never approved it—by declaring a “national emergency” and outlasting congressional efforts to disapprove that emergency (they need a two-thirds majority and only muster a simple majority).
Much of the Defense fund transfers, though, don’t even require an emergency declaration. The money can be moved under existing law. That’s what’s happening with the $3.8 billion that the Pentagon notified Congress this week would be moved from Defense into wall-building.
Here’s the notification PDF. The Trump administration is taking money out of the Joint Strike Fighter and other aircraft and weapons programs to pay for the wall, something that has even Republicans on the Armed Services Committee unhappy.
How can Trump do this? First, the Defense appropriations law allows the president to move up to $4 billion each year from one account to another. That’s Section 8005 of the annual appropriation. Here, he’s moving money from these weapons programs to the Pentagon’s counter-drug account. This vector was also used in 2019, applied to $2.5 billion in wall-building money. It shows up in yellow on this flowchart.
Second, now that it is “counter-drug” money, Trump can transfer it to the Homeland Security department to build a “counter-drug” wall. This is thanks to the nearly magical flexibility of the Defense Department’s counter-drug account, the product of a 1990 law. Let’s look at this law for a moment.
It was created at the height of the crack plague and the war on drugs. The George H.W. Bush administration and a Democratic-majority Congress had just made the U.S. military the “single lead agency” for interdicting cocaine overseas, and were clarifying what that meant. They agreed to give the Pentagon a bunch of new powers, including the ability to support U.S. law enforcement on U.S. soil if it was for the drug war. (The original law was Section 1004 of the 1991 National Defense Authorization Act (NDAA). It had to be renewed every few years. But the 2017 NDAA made the law permanent, as Section 284 of Title 10, U.S. Code.)
Ever since, a military component called Joint Task Force-North, operating from Fort Bliss outside El Paso, has been carrying out domestic support missions, mainly for CBP.
It gave the Defense Department the legal authority to spend its giant budget to build border barriers—as long as such barriers can be justified as “counter-drug.”
This same provision also allows the Defense Department to provide several types of counter-drug assistance to “foreign law enforcement agencies.” As a result, for the last 30 years, Latin American militaries and police forces have received billions of dollars in equipment upgrades, base facilities construction, training, and “intelligence analysis” services from the Defense Department.
This Defense Department’s counter-drug account—listed at the Security Assistance Monitor as “Section 1004 Counter-Drug Assistance”—quickly became the second-largest source of military and police aid to Latin America. It was a big component of Plan Colombia and of the Mérida Initiative in Mexico.
The Special Forces teams that trained many thousands of Colombian troops at the outset of Plan Colombia? The maritime bases built along Honduras’s northern coast? The drone imagery shared with Mexican forces hunting for drug kingpins? The “Interagency Task Forces” operating along Guatemala’s border with Mexico, with the jeeps famously used to intimidate the CICIG? That’s been largely Defense money, not foreign aid budget money.
It flows independently of the State Department and foreign aid budget, with poor visibility over how it’s spent. We always have a very hard time learning how much Defense counter-drug money went as aid to which countries’ security forces in the previous year.
Now, that same legal provision is authorizing the building of border walls. Money gets taken from weapons systems, transferred to the counter-drug budget, then transferred to the Homeland Security Department budget to be used for wall-building. And there’s little Congress can do about it.
The process is under challenge in the courts. Last July, though, the Supreme Court allowed this “counter-drug” money to keep flowing while lower courts slowly deliberated.
Meanwhile, this move pits the military-industrial complex (all those fighter jets, Osprey aircraft, Humvees and other equipment being cut) against the border security-industrial complex (wall construction and related technology). These are mostly different contracting companies, bringing money and employment to different congressional districts. While I don’t have a dog in this fight at all, it’ll be interesting to watch the wrangling.
We learned in Monday evening’s Washington Post that our president plans to take another $7.2 billion out of the Defense Department’s budget and put it into the border wall that he couldn’t convince Congress to pay for. If he gets his way, more than three out of every four dollars in border-wall money will have gone without congressional approval.
This sort of rule by decree is what we’ve seen in Latin America when democracies start giving way to dictatorship.
A new commentary at WOLA’s website breaks down what’s happening: the amounts involved, the convoluted way Trump is wresting the money from defense and avoiding Congress’s constitutional checks, and the situation in the courts, where our only hope lies.
My visit to the border last week went well: logistics were flawless, the people we encountered were amazing, and we learned a lot. But I came home feeling disturbed. Even more than after my four visits this year to San Diego/Tijuana and to Mexico’s southern border.
Maybe it was the relentlessness of the Trump administration’s non-stop assault on some very weak people. Maybe it was the grinding fatigue that the cities’ activists and service providers exuded. But when I got home late Saturday I was having trouble relating to family and friends. I was only happy with my butt in a chair, typing up my notes and my thoughts about what I’d just seen at this part of the border.
I figured I’d write a memo about my trip. But I typed and typed. There was so much to talk about, as you can see from the table of contents below. I worked a late night Monday night, slept a lot Tuesday night (had to give a talk in Spanish on Wednesday), and last (Wednesday) night, I didn’t sleep at all: I pulled my first true all-nighter, not even a break to lie down, in many, many years.
I just wanted to get it done. So much that I saw and heard was so out of balance and awful, the holidays are nearly here, and the writing became like a form of therapy.
12,000 words, some graphics and several photos later, I posted this memo to WOLA’s website late today. It’s sprawling, and honestly I’m in no condition to judge whether it’s easy to follow. But I feel at least somewhat better for having written it.
I hope it helps you to understand what’s going on at the U.S.-Mexico border after a very trying year, and what is at stake there in the next year, for all of us whether we live at the border or not.
Last week, with a 53-36 vote (59.6 percent), the U.S. Senate failed to get the two-thirds necessary to override President Trump’s veto of a resolution reversing his February 15 “national emergency” declaration. That declaration, coming after Trump failed to force Congress to pay billions for his “border wall” demands, would take more than $6 billion from the Defense Department budget and Treasury seized-asset funds, and plow it into border wall construction.
A quick rundown:
2019 started with much of the U.S. government “shut down” because Congress would not pass a budget giving Trump the $5.7 billion he wanted for his border wall.
Finally, after a 35-day shutdown, Trump caved and signed a budget with far less wall funding.
On February 15, using power he claimed that the 1976 National Emergencies Act gives him, Trump declared an “emergency” at the border requiring him to move money out of defense accounts and into wall-building.
Court challenges to this emergency declaration are ongoing. In July, the Supreme Court allowed wall-building to proceed while judicial deliberations continue. In mid-October, though, a federal judge in El Paso froze much of the Defense Department money.
The National Emergencies Act gives Congress the ability to challenge the emergency declaration every six months, by passing a joint resolution. A 1983 Supreme Court decision allows the President to veto this resolution; the emergency declaration would then remain in place unless two thirds of both houses of Congress vote to override the presidential veto.
Twice now—in February-March and September-October—Congress has passed joint resolutions to take down Trump’s emergency declaration. Both times, Trump has vetoed the resolutions. Both times, a strong majority, but not the necessary two-thirds, has voted to override the veto.
There have now been six votes on passage and override of these joint resolutions: three in the House and three in the Senate. Not a single Democrat has voted “no” against these resolutions. Any two-thirds override vote, though, also requires a significant number of Republican votes.
Even in this polarized time, some Republicans have defied the president and voted to undo the emergency declaration. To be exact, 14 in the House and 12 in the Senate. That’s 7 percent of House Republicans, and 23 percent of Senate Republicans.
The rest of the Republican Party’s congressional delegation seems to be unconcerned about the constitutional ramifications of a president unilaterally acting in direct opposition to the clearly expressed will of a Congress that, supposedly, has “the power of the purse.”
Here are the GOP legislators who have voted to undo this authoritarian and wasteful measure. In the Senate, half are members of the Appropriations Committee, whose power to assign funds is directly challenged by the emergency declaration. Many are among the party’s few remaining moderates. Most of their votes are more about preserving Congress’s constitutional power to appropriate funds than about the wisdom of building a border wall. That’s still a principled position, and I wish more GOP legislators would take it.
Lamar Alexander (R-Tennessee, voted “yes” twice, did not vote once): member of Appropriations; said “I cannot support this national emergency declaration and be faithful to my oath to support the Constitution at the same time”
Roy Blunt (R-Missouri, voted “yes” three times): member of Appropriations; said “Those decisions should not be made without congressional action.”
Susan Collins (R-Maine, voted “yes” three times): member of Appropriations; said “while there is some discretion that he has to move money around, I think that his executive order exceeds his discretion”
Mike Lee (R-Utah, voted “yes” three times): concerned about ceding congressional power
Jerry Moran (R-Kansas, voted “yes” twice, did not vote once): member of Appropriations; said “The declaration of an emergency under these circumstances is a violation of the U.S. Constitution”
Lisa Murkowski (R-Alaska, voted “yes” three times): member of Appropriations, said “This is about the administration overstepping Constitutional authority, forcing Congress to relinquish power that is fundamentally ours”
Rand Paul (R-Kentucky, voted “yes” three times): a libertarian; said “I can’t vote to give extra-Constitutional powers to the president”
Rob Portman (R-Ohio, voted “yes” three times): a relative moderate, said “the emergency declaration circumvented Congress and set a ‘dangerous new precedent’”
Mitt Romney (R-Utah, voted “yes” three times): a frequent Trump critic, concerned about ceding congressional power
Marco Rubio (R-Florida, voted “yes” twice, did not vote once): member of Appropriations, said “We have a crisis at our southern border, but no crisis justifies violating the Constitution”
Pat Toomey (R-Pennsylvania, voted “yes” three times): said he supports the wall, but “the emergency declaration undermines the constitutional responsibility of Congress to approve how money is spent”
Roger Wicker (R-Mississippi, voted “yes” three times): said he supports the wall, but “I have serious reservations as to what the Emergency Declaration might do to the Constitutional principle of checks and balances.” (Fun fact: as a member of the House in 2000, Wicker was one of few Republicans to oppose the mostly military aid package known as “Plan Colombia.”)
Justin Amash (I-Michigan, voted “yes” twice, then left the Republican Party): said “I think the President is violating our constitutional system”
Brian Fitzpatrick (R-Pennsylvania, voted “yes” three times): said “I think this decision should be made by Congress”
Mike Gallagher (R-Wisconsin, voted “yes” three times): said “we can’t continue to expand executive authority just because our party now controls the White House”
Jamie Herrera Beutler (R-Washington, voted “yes” three times): member of Appropriations; said “He [Trump] literally contradicted the Constitution to use this money for something other than which it was intended”
Will Hurd (R-Texas, voted “yes” twice, did not vote once): member of Appropriations; represents a border district and has been a consistent border wall critic
Dusty Johnson (R-South Dakota, voted “yes” three times): said “I spent eight years under President Obama fighting ever-expanding executive authority. I remain committed to that principle”
John Katko (R-New York, voted “yes” twice, did not vote once): said “Presidents, from either party, should not legislate from the executive branch”
Thomas Massie (R-Kentucky, voted “yes” three times): said “The appropriations process belongs within Congress according to the Constitution”
Cathy McMorris Rodgers (R-Washington, voted “yes” three times): said “Article I of the Constitution gives the legislative branch the exclusive power to make laws and set funding priorities”
Francis Rooney (R-Florida, voted “yes” three times): said “My vote to override a veto of the resolution to rescind the national emergency declaration was based on the U.S. Constitution and had nothing to do with President Trump.” Recently made headlines by saying he is “open” to impeaching Trump
Jim Sensenbrenner (R-Wisconsin, voted “yes” three times): said “It is imperative that no administration, Republican or Democratic, circumvent the will of Congress”
Elise Stefanik (R-New York, voted “yes” three times): said “No matter what Party is represented in the White House, I will stand up against executive action that circumvents Congress”
Fred Upton (R-Michigan, voted “yes” three times): said “declaring a national emergency and reprogramming already appropriated funds without the approval of Congress is a violation of the Constitution”
Greg Walden (R-Oregon, voted “yes” three times): said the “Constitution grants Congress the power of the purse, not the President”
I’m back from my third visit to the San Diego-Tijuana border so far this year. I spent much of Monday with U.S. authorities, CBP and Border Patrol. Tuesday was an excellent day-long meeting with non-governmental groups from all four border states. I went to Tijuana on Wednesday, and on Thursday met with civic leaders and experts in San Diego.
On Monday, an agent took me the entire length of the border wall between San Diego and Tijuana. Here, since the 2000s there’s been a double fence for much of the 14 miles from the Pacific Ocean to where the fence stops east of Tijuana, for a couple of miles, due to difficult terrain. I saw a lot of construction, as they’re replacing old fence very quickly, using money from the 2018 Homeland Security appropriation.
In one of the most densely populated areas of the entire U.S.-Mexico border, the need to spend minutes climbing a fence deters those border-crossers who’d want to avoid capture and disappear into San Diego’s southern suburbs. It doesn’t, however, deter asylum-seekers who do want to be apprehended, like thousands of children and parents from Central America. If your intention is to stand on U.S. soil, in the no-man’s land between the two rows of fencing, the outer fence is just a speed bump. The Border Patrol agent accompanying me said that the other day, a mother climbed over the 14-foot fence with a 1-year-old slung to her back.
The concertina wire that Trump’s military deployment put up can also be defeated. In this photo, it’s all tangled and pushed down by asylum-seekers climbing over. They shield themselves from the sharp edges by laying carpet over the wire, or simply risk cutting themselves.
The agent showed me the area where the fence ends, just east of the Nido de las Águilas neighborhood on Tijuana’s eastern periphery. Many asylum-seeking families come here too, but others have told me that this area is tightly controlled by organized crime, and migrants must pay a fee to access it.
I went back to the Tijuana side of the San Ysidro port of entry, first thing Wednesday morning, around 7:00 AM when migrants gather to find out whether their numbers will be called from a notebook in which they’d inscribed themselves several weeks earlier. (Another line of newly arrived migrants waits to add their names.) The number denotes their turn to seek asylum the “proper” way, by entering the U.S. port of entry and presenting to a CBP officer. Last Wednesday, CBP allowed only 50 migrants to do this, which is a pretty typical number for San Ysidro.
Most asylum-seekers, though, are crossing elsewhere and turning themselves in to Border Patrol. After they process them and give them notices to appear before an asylum officer, CBP and ICE release asylum-seeking families into San Diego, where a network of charities (the San Diego Rapid Response Network) has set up a shelter to provide a short-term stay, meals, showers, clothing, and help arranging travel to where relatives or other contacts await them. (Those destinations, incidentally, tend to be agricultural areas and zones with a lot of construction—only sometimes the “sanctuary cities” where president Trump proposes to leave them.)
I pulled a few volunteer shifts with the San Diego shelter, mainly helping families get from the airport curb to their gates. The shelter was running low earlier in the week, with about 50 guests, but it had reached 300 the previous week, and by Thursday it was back up to 150. Nobody could explain the fluctuation.
I visited two Tijuana shelters, one run by a Catholic order and one by an NGO. Both were busy, but not full to capacity. Of the nine sectors into which Border Patrol divides the border, San Diego is fourth in arrivals of families and fifth in unaccompanied children. Despite news of “caravans” in Tijuana, far more kids and parents are coming right now to El Paso, south Texas, and Yuma, Arizona.
After three visits to the same area in four months, the border feels much more familiar. I still don’t really understand much of what goes on here, though. I don’t have a feel for the rhythms of work and life. I don’t understand how some residents are totally binational while others rarely even think about the other country in plain view on the other side.
Like a lot of northeastern cities—Washington included—this place combines a transient and diverse population, vast differences in wealth, and a big security presence. But it’s starker here: this is a place where semi-skilled people on one side of the line make $8.80 per day, and those on the other side make at least that in an hour. Where 14 people were killed in one April day one one side of the line, but it took two months last year to reach that total on the other side. The photos help, but it’s still really hard to describe this place to people here in Washington.
Here’s Rep. Henry Cuellar (D-Texas) during last week’s House-Senate Conference Committee meeting on the 2019 federal budget, which hinges on President Trump’s demand for a border wall. Cuellar is pointing to a map of the U.S.-Mexico border in his district.
“We have a river that doesn’t run straight,” he says, reminding his colleagues that past fencing built in the area has often had to get put up as much as a mile inland from the actual border. It’s impossible to build a sinuous fence following the contours of the river’s bank, right in the middle of an active floodplain.
Remember this map anytime someone tries to tell you that a border wall will stop Central Americans, or anyone else, from crossing onto U.S. soil to petition for asylum. In South Texas, there’s no way to keep people from rafting across and setting foot on U.S. soil, where they can await the arrival of Border Patrol agents and ask to apply for asylum. If you’re between the river and the wall, you’re still on U.S. soil, and no “metering” can steer you away.
“Congress has already funded 33 miles (53 kilometers) of new barrier construction here” in south Texas the AP’s Nomaan Merchant reported in late January. “But much of that new barrier will be built north of the Rio Grande, which carves a natural boundary between the U.S. and Mexico. That means migrants will still be able to reach American soil in front of the newly constructed barrier and request asylum.”
Nearly 60 percent of everyone whom Border Patrol is apprehending right now are children and families, most of them asking for protection. In Texas, a wall wouldn’t change that at all.
I’ve edited this post to reflect that I got it wrong and we’re screwed: a joint resolution requires the President’s signature, or for Congress to override his veto, which is unlikely. This is the result of a 1983 Supreme Court decision. My updates are indicated with italics and strikethroughs.
President Trump keeps hinting that, perhaps within the next few days, he may declare a “state of emergency” at the border and order U.S. military personnel to build a wall. This would allow him to build a wall despite the deadlocked debate currently shutting down the U.S. government. He could call it an “emergency” and go against the intent of Congress, spending money—apparently from Defense Department military construction or operations and maintenance funds—that was not appropriated for wall-building.
Such a move would break longstanding norms about the use of presidential power without checks and balances in our democracy. It would also violate longstanding norms about the use of the U.S. military on U.S. soil. And according to Yale law professor Bruce Ackerman, an emergency declaration would not only “be illegal, but if members of the armed forces obeyed his command, they would be committing a federal crime.”
Congress can vote to strike down a national emergency declaration by passing a joint resolution (a bill that doesn’t require requires the president’s signature). In fact, whether Congress wants to do so or not, the law requires it to meet, within six months of an emergency declaration, to consider whether to vote on a joint resolution.
The House of Representatives, with its big new Democratic Party majority, would be virtually certain to approve a joint resolution to shut down Trump’s emergency declaration. After such a resolution gets introduced, the House technically has 15 days to get it out of committee and 3 more days to debate and vote on the floor. But Speaker Pelosi’s House would probably approve a joint resolution rejecting a state of emergency before the ink even dried on the president’s proclamation.
The joint resolution would then go to the Senate. The National Emergencies Act would then give the Senate fifteen days to get it through committee, and three days for the full chamber to debate and vote on it. (The Senate could also hold a vote not to consider the resolution—but that amounts to a vote on the resolution.)
It’s not clear what would happen in the Senate. Though president Trump’s Republican Party holds a 53-to-47 seat majority, the Senate is not guaranteed to uphold a “national emergency” declaration for military wall-building. The handful of moderate Republicans, some of them Trump critics, would be uncomfortable with the process and unenthusiastic about spending billions on a border wall. Even some conservative Republicans would be uncomfortable with using the National Emergencies Act to circumvent Congress’s power to appropriate money. Some would also be troubled about using the military for such a long-term domestic mission.
We would probably see days of tense, high-stakes political theater, but there is some likelihood (30 to 70 percent?) that the Senate would also approve a joint resolution striking down Trump’s emergency declaration. Unfortunately, Trump would then be able to veto the resolution. Overriding that veto would require the votes of two-thirds of both houses of Congress, which is unlikely. The national emergency would stand.
But wWhat if the Senate disagrees with the House? The National Emergencies Act foresees this. “In the case of any disagreement between the two Houses of Congress,” the law explains, both houses must name representatives to a conference committee, which would then have six days to file a report that the House and Senate would have to vote on within another six days. In other words, the two houses are required to compromise, then vote on the compromise agreement.
This is where things get vague. What if the two houses are still deadlocked? “In the event the conferees are unable to agree within forty-eight hours, they shall report back to their respective Houses in disagreement,” the law reads.
What happens then? I don’t know—you’d better ask a constitutional lawyer. Because if the situation reaches that point, the United States would find itself in one of the worst constitutional crises in its history.
Senate Majority Leader Mitch McConnell (R-Kentucky) will shortly introduce a simple bill keeping the still-unfunded part of the U.S. government funded, at 2018 levels, through February 8. This Continuing Resolution will avert a partial government shutdown on Friday December 21. It will not include new wall-building money.
Scheduling the next budget/shutdown deadline for February 8 “would give the new Democratic House time to organize,” said Senate Appropriations Committee chairman Richard Shelby (R-Alabama).
“A stopgap bill would essentially push the government spending fight into the new year, when Democrats will assume control of the House and Mr. Trump’s negotiating leverage — already on the wane — will be considerably weakened,” The New York Timesexplains.
Next steps, according to Reuters: “A Senate Democratic aide said the appropriations bill…was expected to pass the Senate either on Wednesday or Thursday. The House of Representatives would then have to pass the bill and hope that Trump signs it into law.”
If a February 8 Continuing Resolution reaches the White House, President Trump “will take a look at that certainly,” senior presidential advisor Kellyanne Conway told reporters December 19.
The House Appropriations Committee’s version of the 2019 Homeland Security Appropriations bill includes $5 billion for wall construction, as President Trump had demanded. The Senate Appropriations Committee includes $1.6 billion—the amount in the Trump administration’s original request, from February—for construction of fencing using existing designs, not a wall. Senate Democrats have since lowered to $1.3 billion the amount they say they’d be willing to fund. On December 18, Sen. McConnell suggested to Democrats a bill with $1.6 billion for fencing, plus an additional $1 billion for Trump to spend as he sees fit. Senate Minority Leader Chuck Schumer (D-New York) rejected that as a “slush fund.”
On December 18 White House spokeswoman Sarah Sanders gave a first strong indication of White House flexibility on the border-wall issue. She told Fox News that the White House would work with congressional leaders on a bill to get $1.6 billion for fencing, and would try to move money around within other government departments to cobble together additional wall funding. “There are certainly a number of different funding sources that we’ve identified that we can use, that we can couple with the money that would be given through congressional appropriations that would help us get to that $5 billion that the president needs in order to protect our border,” she said. During a White House briefing on the 18th, Sanders added that Trump has “asked every [federal] agency to look and see if they have money that can be used for that purpose.”
In a pair of December 19 tweets, President Trump reinforced the argument that other departments of the U.S. government could contribute to the wall. “The United States Military will build the Wall!” he declared. On the 18th, a Trump tweet backed off his insistence on a concrete wall design: “we are not building a Concrete Wall, we are building artistically designed steel slats, so that you can easily see through it….”
Democratic leaders have made clear that the president does not have the legal authority to move funds from other purposes into wall-building, without congressional approval. “If you’ve got that kind of cushion in your budget and you don’t need that money, use it to pay down the debt,” said Sen. Jon Tester (D-Montana), the ranking Democrat on the Senate Appropriations Homeland Security Subcommittee. “We gave him what he wanted. He ought to take it.”
Senate Majority Whip John Cornyn (R-Texas) told Bloomberg it is unclear what might give President Trump authority to shift money around for wall-building without congressional approval. “I think we’d all have to talk to our lawyers and figure out what his authority is and whether it requires Congress to approve it.”
A USA Today/Suffolk poll released December 17 had bad news for the White House. It found respondents widely opposing a partial government shutdown for border wall money, by a 54 percent to 29 percent margin. 43 percent said that the president and the Republicans would bear the blame for a shutdown. 24 percent would blame the Democrats, and 30 percent would blame both sides equally.
On December 16, White House advisor Stephen Miller, an immigration hawk, told CBS’s Face the Nation that President Trump was willing to undergo a partial government shutdown in order to get border-wall funding. “We’re going to do whatever is necessary to build the border wall to stop this ongoing crisis of illegal immigration,” he said.