On Monday night, the Pentagon notified Congress that it had authorized transferring $1 billion from the Department of Homeland Security to the Army Corps of Engineers in order to start new construction of 57 miles of fencing on the southern border.
Predictably, every Democratic senator serving on the on the Senate Appropriations Committee’s subcommittees on Defense and Military Construction, Veterans Affairs and Related Agencies signed a letter objecting to the move, which was made possible by President Trump’s declaration of a national emergency in February. CNN reported that the letter stated, “We strongly object to both the substance of the funding transfer, and to the Department implementing the transfer without seeking the approval of the congressional defense committees and in violation of provisions in the defense appropriation itself. As a result, we have serious concerns that the Department has allowed political interference and pet projects to come ahead of many near-term, critical readiness issues facing our military.”
The Department of Defense issued a press release that read:
Today, Acting Secretary of Defense Patrick M. Shanahan authorized the commander of the U.S Army Corps of Engineers to begin planning and executing up to $1 billion in support to the Department of Homeland Security (DHS) and Customs and Border Protection. These funds will be used to support DHS’s request to build 57 miles of 18-foot-high pedestrian fencing, constructing and improving roads, and installing lighting within the Yuma and El Paso Sectors of the border in support of the February 15 national emergency declaration on the southern border of the United States.
10 U.S.C. § 284(b)(7) gives the Department of Defense the authority to construct roads and fences and to install lighting to block drug-smuggling corridors across international boundaries of the United States in support of counter-narcotic activities of Federal law enforcement agencies.
Shanahan informed Secretary of Homeland Security Kirstjen Nielsen that the construction will include 18-foot-high fencing along the Yuma and El Paso sections of the border.
When President Trump announced a national emergency, he stated that funds devoted to counterdrug efforts should be utilized to fund the building of the border wall. His announcement prompted Democrats in the House of Representatives to pass a resolution designed to block Trump’s declaration; Trump vetoed the resolution, leaving the resolution dead unless two-thirds of both the House and the Senate override the veto. That is unlikely because the GOP controls the Senate.
On Tuesday, Shanahan spoke before Congress, telling the House Armed Services Committee that the transfer of funds would not affect the military readiness of the U.S., saying, “I appreciate the inherent intra-government complexities of the southwest border situation. I also want to emphasize: The funds requested for the border barrier amount to less than one percent of the National Defense topline … Military construction on the border will not come at the expense of our people, our readiness, or our modernization.”
Committee Chairman Adam Smith (D-WA) argued that executing the transfer of funds for the wall without asking Congress’ permission would prompt Congress to nullify the Pentagon’s capacity to “reprogram” funds.
Shanahan responded, “Given a legal order from the commander in chief, we are executing on that order.”