President Donald Trump’s border wall is facing a surprising new legal hurdle down in Texas: an obscure legislative provision crafted by House Republicans in 2014 when the GOP was targeting then-President Barack Obama’s budget powers.
The amendment, carried forward into current law, has resurfaced with a vengeance in El Paso, Texas. U.S District Court Judge David Briones has been quoting back its words in a series of rulings against Trump’s decision to take $3.6 billion from military construction projects to expedite his wall.
As first adopted, the Republican language specifically prohibited Obama from taking any step to “eliminate or reduce funding for any program, project, or activity as proposed in the President’s budget request” until it’s cleared with Congress.
The triggering event was a relatively narrow dispute in 2013 over funding for space exploration. But when they were enacted in Jan. 2014, the restrictions applied government-wide. And a year later, under full Republican control, Congress added the word “increase” alongside “eliminate or reduce” funding.
What goes around, in other words, comes around.
But what’s most remarkable is how much the legislative phrasing — aimed squarely at Obama — applies directly to the current fight involving Trump.
First, it was Trump’s own budgets that asked Congress to fund many of the same military construction projects, for which appropriations were reduced or eliminated by his spending transfers. Second, Trump took the money unilaterally in order to increase funding for his wall to a level above what he had first requested in his budget.
Briones’ rulings have focused more on the second factor: Trump moving money to fund an above-budget increase for the wall. But the legislative history behind the amendment is a reminder that its intent was to also block a president from asking for money for one account, such as military construction, and then reducing the sum to serve his purposes elsewhere.
Former Republican Rep. John Culberson of Texas, who served on the House Appropriations Committee, was the lead proponent of the 2014 amendment. Email and phone messages left for him by POLITICO have gone unanswered. But people familiar with the fight said the Texan and Obama administration were at odds over future cuts in the space program. And Culberson saw his amendment as one way to head off any attempt by Obama to reduce already-approved funding for planetary science programs in anticipation of cuts down the road.
In either case, the Republican-backed restrictions remain in place, most recently as Section 739 in the general government chapter of the Consolidated Appropriations Act, or CCA, enacted last February. That’s just pages away from the military construction funds and the limited wall funding Congress did approve for Trump. And this proximity helps explain why Briones has zeroed in on the provision in his rulings supporting a lawsuit brought by El Paso County against the administration.
To be sure, attorneys for the twin plaintiffs — El Paso and a local non-profit advocacy group — offered Briones a broad menu of loftier arguments about separation of powers and the Constitution. But time and again, the judge has seemed content to let the nitty-gritty of the CCA and Section 739 speak for themselves.
“Defendant’s Use of Funds to Build a Border Wall Violates the Consolidated Appropriations Act” is the heading Briones chose for one section of his initial October ruling against the administration. “In Addition, the Proclamation Violates 739” is a second.
“To resolve this case,” Briones wrote, “the Court turns to one of the three golden rules of statutory construction ‘established from time immemorial’ that ‘a more specific statute will be given precedence over a more general one.’”
As if adding an exclamation point, the judge emphasized that the CCA constitutes a fully-grounded appropriations bill under the Constitution and therefore he attaches greater weight to the words of Section 739.
The same tone was repeated this past week when Briones ordered an injunction against the administration using any of the disputed $3.6 billion in military construction funds for the wall. He was careful to apply his order only to top officials in federal agencies, not Trump himself. In the same vein, he steered clear of the U.S. Supreme Court and made no attempt to hinder the administration from tapping into a second pot of Pentagon funds: $2.5 billion that has been shifted to wall construction as a “counterdrug activity.”
But when it came to the $3.6 billion taken from military construction projects, the judge was blunt.
“Far from enjoining a unique or sole source of funding … this injunction merely stops the unlawful augment of the funds that were already appropriated for border wall funding,” the judge wrote. “Granting a preliminary injunction would not ‘disservice the public interest.’ … To the contrary, because Defendants’ actions are unlawful and the people’s representatives — Congress — declined to augment the border wall budget as Defendants attempt, the public interest would be served by halting them.”
In compliance with Briones’ ruling, cease and desist orders have been issued by the administration for contracts already awarded and funded from the military construction funds. But the Justice Department is fully expected to appeal and ask the Fifth Circuit U.S. Court of Appeals in New Orleans to impose a stay on Briones’ injunction.
Indeed, the stakes in the legal fight may only grow given the outlines of the fiscal 2020 spending deal now being finalized in Washington.
Following up on his actions already, for example, Trump has proposed to funnel $6.2 billion through the same military construction accounts: $3.6 billion to cover the shortfall he created in 2019 and $3.6 billion to again be moved into border wall construction next year. None of this is expected to happen under the proposed agreement.
In fact, the administration may rue the day it decided to use military construction funds as a way to fund its wall.
That’s because the military construction bill is among the most parochial of all the annual appropriations measures. The dollars are broken down in great detail by project — each yielding a tangible result for lawmakers.
Mindful of this, the Pentagon has long been sensitive about consulting Congress before any big changes. It’s quite extraordinary to read the detailed internal financial management rules promulgated by the Department of Defense, an executive agency, to guide the requests it makes of Congress to shift funds between accounts..
All this went by the wayside when Trump invoked his emergency power to take the money outright. By September, Briones’ court was given notice that 11 border wall projects would be funded from the $3.6 billion. But back in Congress, enough Senate Republicans had joined Democrats in revolt that an impasse resulted over Trump’s 2020 budget for the same account.
The White House had been betting the opposite: that military construction funds are so popular among lawmakers that Democrats would swallow some added wall funding. That didn’t prove true. In fact, Senate Appropriations Committee Chairman Richard Shelby (R-Ala.) feared a proposed Democratic amendment to block future transfers for the wall could peel off enough Republican votes to prevail in committee. Such a loss would cost him leverage going forward so the military construction bill never came up in the panel.
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