Military Funding for Southwest Border Barriers
Released: 2019-09-27T00:00:00

Introduction

Funding for new border barrier construction became the focal point of a partial government shutdown that began on December 22, 2018, and lasted 34 days, the longest on record. Congress ultimately did not accept President Donald Trump's demand for $5.7 billion in new funding for the construction of a proposed border wall, providing instead $1.375 billion for additional pedestrian fencing as part of the Consolidated Appropriations Act of 2019 (CAA).

Unsatisfied with the negotiated agreement, the Trump Administration issued a Presidential Proclamation on February 15, 2019, declaring a national emergency at the southern border of the United States, a move that, among other things, allowed the President to invoke special authorities for redirecting military construction appropriations.

Concurrently, the White House released a plan for reprogramming or transferring $6.7 billion to southwest border barrier projects, of which $6.1 billion would come from unobligated Department of Defense (DOD or Department) appropriations.

Congress, noting the President's attempt to secure more funding than provided in the CAA, and concerned over a potential violation of its constitutional prerogatives to manage appropriations, acted quickly in an attempt to terminate the national emergency declaration. A joint resolution, H.J.Res. 46 , Relating to a national emergency declared by the President on February 15, 2019 , was passed by both houses on March 14, 2019, but was subsequently vetoed by the President one day later. On March 26, 2019, an attempt to override the veto fell short of the required two-thirds majority in the House by a vote of 248-181. In September 2019, Congress again attempted to terminate the state of national emergency with a joint resolution ( S.J.Res. 54 ) passed by both chambers. The legislation has yet to be considered by the President. The national emergency remains in effect.

This report outlines the Administration's FY2020 border barrier funding plans using defense funds, describes the various authorities involved, details the process for each budgetary action, indicates the status of appropriated funds, identifies recent congressional actions, and identifies potential issues for Congress.

The report does not include a comprehensive overview of DHS funding for border barriers, or describe that agency's FY2020 request for related projects. It also does not address the deployment and concomitant expense of mobilizing active and reserve military personnel for service on the border.

The Trump Administration's FY2020 Funding Plan

On February 15, 2019, President Trump issued a proclamation declaring a national emergency at the southern border that required use of the Armed Forces. Concurrent with the announcement, the White House released a Fact Sheet entitled, President Donald J. Trump's Border Security Victory (hereafter referred to as the border security factsheet ) that described steps the Administration intended to take in order to provide $6.7 billion in appropriations outside of the regular legislative process for new border barrier projects. Drawing on both emergency and nonemergency authorities, the Administration outlined a number of steps it stated would be "used sequentially and as needed."

In March 2019, the Administration delivered its annual budget to Congress. The FY2020 proposal included an additional $7.2 billion in Army Overseas Contingency Operations (OCO) military construction funding, half of which ($3.6 billion) would replenish accounts affected by the Administration's b order security factsheet plan. The remainder, $3.6 billion, would fund future border barrier projects. According to Deputy Under Secretary of Defense (Comptroller) Elaine McCusker:

We have $3.6 billion -- up to $3.6 billion to backfill any MILCON projects that we end up having to fund in '20 instead of '19. And then we also have $3.6 billion for potential new construction for the border, and the reason we've done this is to reflect the fact that we have a presidential priority that has a macro funding level and we want to help get to that funding level.

Overall, funding actions the Administration described between February and March 2019 included a complex mixture of realigned DOD program savings and unobligated military construction funds from past years ($6.1 billion), as well as a request for new defense appropriations in FY2020 ($7.2 billion).

In its b order security factsheet plan, the Administration cited an additional $2 billion in non-DOD appropriations; $1.375 billion in previously enacted FY2019 Department of Homeland Security (DHS) appropriations (included in the CAA), and $601 million in contributions from a Treasury Forfeiture Fund (TFF) that manages seized assets. Altogether, these defense and non-defense funds would total $15.3 billion, of which 87% would be DOD funds.

The Table 1 indicates all such actions.

Status of Funds

Of the $601 million in FY2019 Treasury Forfeiture Funds described in the Administration's plan, at least $242 million has been transferred for use by the U.S. Army Corps of Engineers (USACE). The Treasury Department has stated that it will transfer the remaining $359 million when additional funds become available.

Of the $2.5 billion the Administration has designated for transfer through the defense Drug Interdiction and Counterdrug Activities account (hereafter referred to as the defense Drug Interdiction account), $1.9 billion has been obligated. A substantial portion of the total amount, previously frozen by court injunctions, became available on July 26, 2019 when the U.S. Supreme Court struck down lower court injunctions. Since then, DOD border barrier construction has been allowed to proceed, though the courts have made no final ruling.

After an extended review process, on September 3, 2019, the Secretary of Defense invoked the emergency construction statute 10 U.S.C. 2808 and directed the Department to transfer appropriations from 127 previously authorized military construction projects to eleven barrier projects identified by DHS.

The figure below illustrates the status of the Administration's border security factsheet plan as of September 2019. Of the $6.7 billion in newly introduced funds, approximately $2.1 billion has been obligated (or otherwise made available for obligation). For completeness, the figure also includes $1.375 billion in FY2019 DHS appropriations that were included in the President's Border security factsheet announcement, though these funds were previously enacted and do not represent a plan for future actions.

Overview of DOD funds Available for Securing the Border

Although the Secretary of the DHS is charged with preventing the entry of terrorists, securing the borders, and carrying out immigration enforcement functions, funding to carry out those missions may be supplemented in part by resources from other agencies. Within DHS, U.S. Customs and Border Protection (CBP), is chiefly responsible for securing the borders of the United States, preventing terrorists and their weapons from entering the country, and enforcing hundreds of U.S. trade and immigration laws.

Because border security lies primarily within the jurisdiction of DHS, Congress has not generally provided DOD with significant funds to address that mission. Congress has instead authorized the military to support DHS (or local authorities) in certain situations, such as to assist with drug interdiction or with terrorist incidents involving weapons of mass destruction. According to DOD officials:

Active-duty and National Guard personnel have supported Federal and State counterdrug activities (e.g., detection and monitoring of cross-border trafficking, aerial reconnaissance, transportation and communications support, and construction of fences and roads) beginning in the early 1990s. Most recently, U.S. Northern Command's Joint Task Force-North executed 53 counterdrug support missions in fiscal year (FY) 2017 and 23 missions in FY2018. When the Secretary of Defense approved the four border States' plans for drug interdiction and counterdrug activities, DoD committed $21 million in funds in FY2017 and $53 million in FY2018.

Congress has also permitted DOD special flexibility for undertaking military construction projects during periods of national crisis, such as when the President declares a national emergency. (The National Emergencies Act, or NEA, establishes procedures for how a President may declare a national emergency but does not explicitly define that term. ) Historically, emergency military construction has been used to support troops engaged in contingency operations overseas at locations that include Iraq and Afghanistan.

DOD Funding Available Without a Declaration of a National Emergency

The Administration's plan would tap funds for border barriers using both statutory military construction authorities and non-statutory general transfer authorities. This section provides an overview of those available to the Administration (both invoked and not invoked). Later sections examine the Administration's use of specific authorities in depth.

Statutes Permitting Military Construction

Statutes that would authorize DOD to undertake military construction activities along the border but that would not require a Presidential declaration of a national emergency include the items below.

The Administration has invoked:

10 U . S . C . 284 Support for counterdrug activities and activities to counter transnational organized crime . Upon request by qualifying entities, this statute authorizes DOD to reprogram funds to construct roads, fences, and lighting along international drug smuggling corridors in order to support law domestic (and foreign) law enforcement. The Department's activities are funded from a central transfer account called the Drug Interdiction and Counter-D rug Activities , which also receives direct annual appropriations.

The Administration has not invoked:

10 U . S . C . 2803 Emergency construction . This statute authorizes the Secretary of Defense, under conditions the Secretary determines to be vital to the national security or the protection of health, safety, or environmental quality, to obligate $50 million for military construction projects not otherwise authorized by law. This authority was not included in the Administration's Border security factsheet plan for wall funding.

General and Special Transfer Authorities (Section 8005 and Section 9002)

The Administration's use of the statute 10 U.S.C. 284 is predicated on accessing DOD funds made available by General Transfer Authority (GTA) transfers. GTA (sometimes colloquially referred to as Section 8005 , though the provision number may change ) , refers to the recurring provision in annual defense appropriations acts that set the maximum amount permitted for DOD's base reprogramming actions (usually around $4 billion). Section 9002 is the equivalent designation for war-related, Title IX Overseas Contingency Operations , funds (usually around $2 billion). Congress typically requires that reprogramming be undertaken within a specified timeframe (less than year) and meet the following additional criteria:

That such authority to transfer may not be used unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress.

Congress has generally considered reprogramming authority provided to Executive branch departments and agencies to be a privilege. Though the constitution invests Congress with the "powers of the purse," legislators typically provide executive branch agencies some limited flexibility to shift funds among various accounts in recognition of a complex budget execution process wherein estimated costs often vary based on unforeseen events. Such flexibility allows agencies to accommodate changing circumstances, while continuing to carry out the essential functions for the programs and activities for which funds have been provided.

Congress can grant reprogramming and transfer authorities in a variety of forms. They may be statutory or non-statutory. Congress may establish a central transfer account for a special purpose, or alternately, apply a broader criteria that describe which funds may be exchanged, and in what specific circumstances. Historically, Congress has consistently provided some limit to the total amount of funds that may be used.

DOD Funding Available With a Declaration of a National Emergency

With the declaration of a national emergency, the President may invoke statutory authorities that allow DOD to fund military construction projects that support the national response. These authorities generally last only as long as the emergency is in effect (expiring immediately or within 180 days of termination). They include DOD military and civil works funds.

In his February 2019 proclamation, the President invoked:

10 U.S.C. 2808 Construction authority in the event of a declaration of war or national emergency . This broad authority permits the Secretary of Defense to undertake military construction projects not otherwise authorized by law that may be necessary to support the use of the Armed Forces after the declaration of a national emergency . New projects are funded from the unobligated balances of existing ones, with no other upper limit on the overall total.

In his February 2019 proclamation, the President did not invoke:

33 U.S.C . 2293 Reprogramming during national emergencies . This statute permits the Secretary of the Army in the event of a declaration of war or a declaration of a national emergency that requires or may require use of the Armed Forces to terminate or defer Army civil works projects that the Secretary deems are nonessential to national defense, and apply the resources of the Department's civil works program to, "authorized civil works, military construction, and civil defense projects that are essential to the national defense."

Figure 2 summarizes the main points of each of the statutes listed above as they pertain to the use of military construction.

Use of Authorities to Fund Border Barrier Construction

The following two subsections contain a detailed examination of DOD's proposed use of statutory and non-statutory authorities espoused in the Trump Administration border security factsheet . These include: 10 U.S.C. 2808, which would make $3.6 billion available, and; 10 U.S.C. 284, which would transfer $2.5 billion of defense program savings in concert with the non-statutory authority Section 8005 (General Transfer Authority). The final subsection addresses the use of Treasury Forfeiture Funds, which would provide $601 million for the Administration's border funding plan.

10 U.S.C. 2808: Military Projects Deferred by Emergency Statute

Overview

When the President declares a national emergency requiring the use of the Armed Forces and invokes the emergency statute 10 U.S.C. 2808, the Secretary of Defense is permitted to undertake military construction projects "not otherwise authorized by law that are necessary to support such use of the armed forces." Such projects are funded using the unobligated appropriations of construction projects currently underwayâ effectively deferring them until Congress provides replenishing appropriations.

On February 15, 2019, President Trump issued Proclamation 9844, Declaring a National Emergency Concerning the Southern Border of the United States , to address what he described as a long-standing and worsening problem of large-scale, unlawful migration through the southern border. The Proclamation asserted that the severity of the crisis justified use of the Armed Forces, and invoked 10 U.S.C. 2808, thus unlocking emergency construction authority.

On September 3, 2019, the Secretary of Defense determined that 11 construction projects requested by DHS were necessary to support the use of the Armed Forces along the southern border, pursuant to 10 U.S.C. 2808.

In a memorandum to the Department, the Secretary directed the DOD Comptroller to transfer $3.6 billion in unobligated military construction appropriations for the new construction, and urged the Secretary of Army to begin work expeditiously. The transfers indefinitely deferred 127 previously authorized military construction projects, roughly half of which were at overseas locations ($1.8 billion for 64 non-U.S. projects).

Of the deferred military construction projects outside the United States, approximately 42% ($772 million; 21 projects) would have supported the European Deterrence Initiative (EDI), a program intended to increase the capability of U.S. forces in Europe against non-NATO regional adversaries. In public remarks to the media on September 5, 2019, Secretary of Defense Mark Esper suggested allies reimburse the United States for the funding shortfalls.

Of deferred military construction projects within the United States (and associated territories), the largest share of funds would come from Puerto Rico ($403 million, or 23% of total) and, to a lesser extent, Guam ($257 million, or 15% of the total).

The Table 2 summarizes the total amount of deferred funds, grouped by U.S. State or affiliated territory.

DOD has stated that it would make funds available to the Department of the Army for border barrier projects by prioritizing the deferral of $1.8 billion in non-U.S. projects . Funds associated with projects in the United States ($1.8 billion) would be made available at some later date.

DOD's action has attracted warnings from Members of Congress concerned over military construction projects that may be affected in their states and districts. Critics have also expressed concerns that the President's use of emergency powers could circumvent (or be perceived as circumventing) the congressional appropriations process.

DOD Imposed Non-Statutory Selection Criteria to Identify Project Funds as Sources for Potential Reprogramming

DOD developed internal criteria not required by 10 U.S.C. 2808 that narrowed the pool of military construction projects eligible for deferment under the Administration's use of that statute.

In testimony before the Subcommittee on Military Construction, Veterans Affairs, and Related Agencies in February 2019, Assistant Secretary of Defense for Sustainment Robert McMahon explained the Department's reasoning for the additional guidelines:

In order to protect military readiness, the projects that are most likely to be temporarily delayed include those that pose no or minimal operational or readiness risks if deferred, projects that were already scheduled to be awarded in the last six months of the fiscal year, and recapitalization projects of existing facilities that can be temporarily deferred for a period of months.

The Department's internal criteria narrowed the scope of the project funding pool by applying the following selection criteria:

No military construction projects would be considered that have already received a contract award; No military construction projects with FY2019 award dates would be considered; and No military housing, barracks, or dormitory projects would be considered.

In official statements, DOD has said that if its FY2020 budget request for military construction is approved by Congress, it will use the funds provided to replenish funding for projects deferred in favor of newly funded border barrier construction.

If the Department's FY2020 budget is enacted on time as requested, no military construction project used to source section 2808 projects would be delayed or cancelled.

Nevertheless, projects deferred by use of the statute effectively remain underfunded (or unfunded) unless Congress enacts additional amounts to replenish the original appropriations. DOD has requested $3.6 billion in additional Army military construction funds as part of its FY2020 budget submission for this purpose. Congressional opponents have argued against replenishment and asserted that DOD transfers would be tantamount to cancellingânot deferringâ affected projects.

DOD's Emergency Decision-making May Have Deviated from Precedent

The current DOD decisionmaking process for construction in the event of a declaration national emergency appears to differ from the one described in the Department's Financial Management Regulation (FMR) and associated internal directives. The current process appears to have been driven by DHS requests, not generated internally by Military Departments in conjunction with Combatant Commanders (COCOMs).

DOD's Internal Process on Use of 10 U.S.C. 2808 Remains Unclear

Though DOD has not fully disclosed internal deliberations related to its 10 U.S.C. 2808 funding decisions, an approximate chronology of events has emerged from court records, media reporting and official briefings. (See Appendix A for detailed chronology.)

On February 18, 2019, then-Acting Secretary of Defense Patrick Shanahan requested DHS provide a prioritized list of construction projects that, according to its assessment, would improve the operational effectiveness of troops deployed to the border. DHS responded on March 20, 2019 with a prioritized list that included $5 billion in projects along 220 miles of both public and private U.S.-Mexico borderland.

On April 11, 2019, then-Acting Secretary of Defense Shanahan directed the Chairman of the Joint Chiefs of Staff to provide a detailed evaluation of the DHS proposal by May 10th, 2019 and assess how the DHS-requested projects might support the mobilization of the Armed Forces to the southern border. Concurrently, the Acting Secretary instructed the DOD Comptroller and others to identify $3.6 billion in unobligated balances from existing military construction projects that might serve as a source of funding for border barriers.

On May 6, 2019, the Chairman of the Joint Chiefs of Staff submitted his final report, Assessment of Whether the Construction of Barriers at the Southern Border is Necessary to Support the Use of Armed Forces in Securing the Border , which concluded that all DHS-identified construction projects were necessary to support the use of the Armed Forces. The report's methodology was based, in part, on the assumption that any construction along the border would provide necessary support, wherever troops may (or may not) be deployed:

In general, construction projects in one sector of the border have ripple effects across all other sectors. This recognition drives our conclusion that any border barrier construction supports the use of the armed forces on the border to some extent, regardless of where the construction occurs relative to the current location of DoD operations.

On August 21, 2019, Kenneth Rapuano, Assistant Secretary of Defense, Homeland Defense & Global Security (ASD/HDGS), recommended the Secretary of Defense adopt an action plan that would execute 11 DHS identified projects and defer $3.6 billion in existing military construction. The Secretary of Defense approved all these recommendations on September 3, 2019.

DOD Directives on Use of 10 U.S.C. 2808 Describe a Process that Originates with Combatant Commanders

Historically, DOD has used 10 U.S.C. 2808 to fund projects at overseas locations for war related infrastructure. Requests for emergency construction projects originate with the Secretaries of the Military Departments and COCOMs, who together make a preliminary assessment on whether use of 10 U.S.C. 2808 authorities is warranted. For each emergency project, officials must provide detailed justification materials that analyze possible alternatives to use of the emergency authority, give a history of the request and rationale for why the project may not be deferred, and submit a cost estimate and timeline for completion. The Chairman of the Joint Chiefs of Staff (CJCS) is then required to certify any proposed projects are consistent with current theater basing plans and do not conflict with other operational priorities.

Having made these determinations, the Secretaries then forward their list of proposed emergency projects and detailed justification materials to the Under Secretary of Defense for Acquisition and Sustainment, or ASD (Sustainment). That office, in turn, provides the Secretary of Defense with its recommendations.

The Secretary makes a final decision on projects to be undertaken and notifies all appropriate defense committees of the pending action, as required by statute. Following this notification, the Office of the Under Secretary of Defense (Comptroller) (OUSD(C)) is permitted to issue funds for execution.

10 U.S.C. 284: DOD Transferred Funds Over Congressional Objections in Contravention of DOD Directives

Overview

To execute the plan described by the Administration's border security factsheet, DOD reprogrammed $2.5 billion from a variety of nondrug defense programs, through the Department's Drug Interdiction and Counterdrug Activities, and on to the U.S. Army Corps of Engineers, the federal agency that both DHS and DOD have asked to manage border barrier construction activities.

This two-stage processâtransferring funds into and out of the defense Drug Interdiction accountâwas permitted by multiple authorities: first by Section 8005 General Transfer Authority and Section 9002 Special Transfer Authority, and in the final stage by the statute 10 U.S.C. 284.

By transferring funds from nondrug programs into the defense Drug Interdiction account, DOD was able to tap a larger pool of appropriations than might otherwise have been available by using the account's own funds. At the same time, the Drug Interdiction account's ongoing programs were safeguarded from diminishing transfers. DOD officials have stated they would not tap the account's own appropriations for wall-related projects:

DOD will not use any DoD counter-narcotics funding for the drug-demand-reduction program, the National Guard counter-drug program, or the National Guard counter-drug schools program to provided support to DHS under 10 U.S.C. 284(b)(7).

To accomplish the first stage of the $2.5 billion transfer processâtransferring savings from nondrug programs to the defense Drug Interdiction accountâDOD did not comply with internal regulations that require the Department to first seek congressional prior approval for general transfer authority (Section 8005) actions.

DOD's process for submitting prior-approval requests to congressional defense committees is a non-statutory requirement intended to preserve comity with legislators who set the Department's reprogramming thresholds each year. Disapproval by any one of the four committees terminates further action, according to DOD regulations, though the Department may request reconsideration or submit a modified request.

On March 25, 2019, the Department notified the four congressional defense committees of its plan to transfer $1 billion, the first of several reprogramming actions. The House Armed Services and House Committee on Appropriations immediately denied the request. DOD nevertheless completed its transfer on March 26, 2019, for the first time overriding congressional disapprovals. The Department followed up with an additional reprogramming action of $1.5 billion, which it completed on May 9, 2019.

How DOD Transferred $2.5 billion in Two Reprogramming Actions

DOD's first reprogramming action occurred on March 25, 2019, and included $1 billion for construction of high priority projects in Yuma Sector Arizona (Projects 1 and 2) and El Paso Sector Texas (Project 1). All projects were to be managed by the U.S. Army Corps of Engineers.

The transfer of funds took place in two stages. In the first stage, the Department used General Transfer Authority (also known as Section 8005 authority) to shift $1 billion in Army military personnel program savings into the defense Drug Interdiction account. The funds consisted of:

$812 million (81%) in excess appropriations due to a shortfall of 9,500 personnel from the Army's targeted end strength, and $188 million (19%) in program savings from several military benefits programs.

In the second stage of the transfer action, the Department invoked 10 U.S.C. 284 to authorize moving the $1 billion into an Army Operation and Maintenance appropriation for use by the Army Corps of Engineers, which is responsible for managing all DOD approved border barrier projects.

On May 9, 2019, DOD notified congressional defense committees of a second reprogramming action of $1.5 billion for four additional border barrier projects (El Centro California Project 1 and Tucson Sector Arizona Projects 1-3; see Appendix Table B-2 for complete list). Unlike the first action, the Department transferred both base and OCO funds:

Base: $818.5 million (55%) drawn from a variety of accounts, including research and development technologies to reduce the U.S. chemical stockpile ($252 million), recovered savings related to lower than expected contributions to the Thrift Savings Plan retirement ($224 million), and the cancellation of a National Security Space Launch mission ($210 million). Overseas Contingency Operations: $681.5 million (approximately 45%) drawn from funding for training of Afghan security forces and reimbursement to Pakistan for logistics support.

Base and OCO reprogramming authorities are derived from separate provisions with nearly identical legislative language; for base Section 8005 of P.L. 115-245 and Section 1001 of P.L. 115-232 ; and for OCO Section 9002 of PL. 115-245 and Section 1512 of P.L. 115-232.

DOD Has Undertaken Six Border Barrier Projects Requested by DHS Under 10 U.S.C. 284

On February 25, 2019, DHS requested that DOD undertake 11 construction projects on the U.S.-Mexico southwest border in California, Arizona, and New Mexico. The projects involved construction or replacement of roads, lighting, and vehicle and pedestrian fencing along drug smuggling corridors that were also areas of high illegal entry. DHS stated the purpose:

To support DHS's action under Section 102 of IIRIRA, DHS is requesting that DoD, pursuant to its authority under 10 U.S.C. Â§ 284(b)(7), assist with the construction of fences roads, and lighting within the Project Areas to block drug-smuggling corridors across the international boundary between the United States and Mexico.

DOD initially agreed to fund seven of the 11 projects in multiple funding tranches (described above). The Defense Department subsequently cancelled one of these projects (Yuma Sector Project 2), which was later funded using the emergency authority 10 U.S.C. 2808. All the projects were to be managed by the U.S. Army Corps of Engineers (USACE).

DOD's first reprogramming funding tranche of $1 billion supported: Yuma Sector Arizona Projects 1 and 2, and El Paso Sector Texas Project 1. DOD's second funding tranche of $1.5 billion supported: El Centro California Project 1 and Tucson Sector Arizona Projects 1-3.

Court Challenges Delayed Project Execution While Funds Expire September 30, 2019

As of September 2019, DOD has obligated $1.9 billion of the $2.5 billion it reprogrammed for wall related construction under 10 U.S.C. 284. Until recently, operations were suspended due to multiple court injunctions in a legal case challenging DOD's reprogramming actions, Sierra Club v. Trump . The delays incurred additional costs as contractors that had received contract awards were compelled to idle their equipment and put laborers on standby. On July 26, 2019, the U.S. Supreme Court lifted all injunctions in the case, allowing construction to once again proceed. Nevertheless, the litigation remains unresolved. In the case of an unfavorable ruling, the government has suggested that it may be required to take down the new construction.

DOD is under some pressure to complete the obligation of reprogrammed appropriations before funds are no longer available. Due to legislative language regarding the period of availability of transferred appropriations, all unobligated amounts expire at the end of the current fiscal year, on September 30, 2019, thus incentivizing quick action. Additionally, due to the complex funding structure of contracts under consideration, USACE requires some actions be taken within 100 days of the award date, according to Army officials:

â¦contracts require definitization not later than 100 days from the date of contract awardâ¦If the Corps does not have sufficient time available prior to September 30, 2019, to definitize these contracts and thereby obligate the balance of the contract price, the remaining unobligated funds will become unavailable for obligationâ¦As a consequence, the Corps will be unable to complete the projects as planned, and the contracts will have to be significantly de-scoped or terminated.

Treasury Forfeiture Funds (TFF) Available

Established in 1992 for the purpose of managing cash and other resources seized as the result of civil or criminal asset forfeiture, the Treasury Forfeiture Funds (TFF) functions as a multi-Departmental source of funding for law enforcement interests of the Departments of the Treasury and Homeland Security. With executive authority to define what fits within this broadly defined purpose, the Administration determined that it could be a source of wall funding.

The TFF is managed by the Treasury Executive Office of Asset Forfeiture (TEOAF), which makes budget authority available to other federal agencies or bureaus via interagency agreements, reimbursing them upon the receipt of spending invoices. Payments are limited by the total value of seized property. TEOAF's mission statement is:

To affirmatively influence the consistent and strategic use of asset forfeiture by law enforcement bureaus that participate in the Treasury Forfeiture Fund (the Fund) to disrupt and dismantle criminal enterprises.

On February 15, 2019, the Treasury Department notified congressional appropriators that it had approved a DHS request (submitted in December 2018) to provide a total of $601 million in TFF to the CBP for border security purposes. The first tranche of $242 million was made available to CBP for obligation on March 14, 2019. The second tranche of $359 million is expected to be made available at a later date, upon Treasury's receipt of additional anticipated forfeitures. All funds the TFF provides to U.S. Customs and Border Protection (CBP) may be used for various aspects of border security ânot only the construction of a physical wall.

Congressional Actions

Congressional response to the Administration's b order security factsheet plan has generally split by chamber, with the House Armed Services and Appropriations committees moving swiftly to pass legislative language that would block the President's actions and the Senate Armed Services and Appropriations committees expressing some support.

In late July 2019, news outlets reported congressional leadership had come to an informal understanding as part of a settlement of the annual budget caps for FY2020 and FY2021 that might exclude legislative language restricting the use of federal funds for border barriers from annual appropriations measures. The deal would specifically prohibit legislative provisions limiting the use of transfer authorityâa key part of the President's Border security factsheet planâunless such language was adopted on a bipartisan basis. The effect of such language is still unclear as is how it may otherwise be used to modify ongoing legislative activity.

House Authorization

The House-passed version of the FY2020 National Defense Authorization Act ( H.R. 2500 ) contains a number of provisions that if enacted would limit or prohibit the use of DOD funds for construction of border barriers. Furthermore, it provides no funding for the Administration's request for replenishment of defunded projects or for related future projects. The bill targets each stage of the Administration's funding plan:

Transfer Authority . Section 1001 would sharply curtail the total amount of base funds that may be used for reprogrammed, reducing the limit to $1 billion (from $4.5 billion in FY2019). Section 151 2, the equivalent transfer authority used for war-related funds, would be reduced to $500 million (from $3.5 billion in FY2019). 10 U.S.C. 284 . Section 1011 would remove fence construction as a permitted type of support authorized under 10 U.S.C. 284 and would impose additional congressional notification requirements associated with use of the statutory authority. 10 U.S.C. 2808 . Section 2802 would limit the total amount of funds that could be used under 10 U.S.C. 2808 emergency authorities to $500 million if used for construction "outside the United States," or $100 million if used for domestic construction projects. (Currently, transfers are only limited to the total amount of all unobligated military construction appropriations.) These changes would apply only to projects pursuant to a declared emergency and would not impact projects that support a declared war. General Prohibition . Section 1046 would prohibit the use of national defense funds appropriated between FY2015-FY2020 for the construction of any type of physical border barrier along the southern border. Section 2801 contains identical language that applies to military construction funds.

On May 15, 2019, a group of legislators led by House Armed Services Committee members introduced H.R. 2762 , a bill that would modify 10 U.S.C. 2808 by imposing a $250 million cap on the total amount that could be used for emergency military construction projects in the event of a national emergency. Additionally, "The bill would only allow money that cannot be spent for its intended purpose to be used for an emergency, would require additional information in a congressional notification, and delay the start of construction until after a waiting period following the notification going to Congress."

Senate Authorizations

The Senate passed version of the FY2020 National Defense Authorization Act ( S. 1790 ) would support the actions described in the President's Border security factsheet plan by providing $3.6 billion in military construction funds to replenish projects deferred by the Administration's use of 10 U.S.C. 2808 and avoiding large cuts to DOD reprogramming thresholds. However, the Senate bill would not authorize the additional $3.6 billion requested by the Administration for future border barrier projects.

Transfer Authority . Section 1001 and Section 1522 provide $4 billion in general transfer authorityâ a decrease of $0.5 billion from FY2019 authorized amountsâ and $2.5 billion in special transfer authorityâ a decrease of $1 billion from FY2019 authorized amounts, respectively. 10 U.S.C. 2808 Replenishment funding. Section 2906 would provide $3.6 billion to replenish military construction projects affected by the use of 10 U.S.C. 2808 transfers, fulfilling the Administration's entire request for that purpose. Authorization for the transfer of these funds into the depleted accounts would terminate at the end of FY2020 (September 30, 2020).

House Appropriations

The House has generally sought to limit the Administration's funding actions across multiple appropriations bills. In the first of two FY2020 appropriations minibus measures, the Labor, Health and Human Services, Education, Defense, State, Foreign Operations, and Energy and Water Development Appropriations Act, 2020 ( H.R. 2740 ), Division C (Department of Defense Appropriations, H.R. 2968 ) and Division E (Energy And Water Development And Related Agencies Appropriations Act, 2020, H.R. 2960 ) contained the following provisions that would affect the Administration's plan for funding border barrier construction:

Transfer Authority. Section 8005 would limit general transfer authority of base funds to $1 billion (a reduction from $4 billion in FY2019 ) and require the Secretary of Defense and others to certify the transferred funds will be used for higher priority items. The Section 9002 special transfer authority for war funds would provide authority to transfer up to $500 million (a reduction from $2 billion in FY2019). 10 U.S.C. 284 . Though the legislation would provide $816.8 million for Drug Interdiction and Counterdrug Activities transfer account (for use under 10 U.S.C. 284), the bill prohibits use of any of those funds for construction of border barrier fencing, and further prohibits any transfer of these funds. General Prohibition. Section 8127 would broadly prohibit defense appropriations from being used for construction of a wall, fence, border barrier, or border security infrastructure along the southern border. U.S. Army Corps of Engineers. Section 108 of Division E would broadly prohibit USACE from using any civil works funds for border barrier construction:

Notwithstanding any other provision of law, none of the funds made available by this Act or any other prior appropriations Acts for the Civil Works Program of the United States Corps of Engineers may be committed, obligated, expended, or otherwise used to design or construct a wall, fence, border barriers, or border security infrastructure along the southern border of the United States.

The House passed the second of two FY2019 appropriations mini-buses, H.R. 3055 on June 25, 2019. It contains a number of limiting restrictions in Division D (Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2020) that would interrupt the Administration's plans for funding border barriers.

Reprogramming Guidelines. Section 122 would require DOD to follow its own guidelines when reprogramming military construction funds, a directive that would make significant transfers contingent on congressional prior-approval. In committee language, the House cautioned DOD that "reprogramming is a courtesy provided to DOD and can be taken away if the authority is abused" and urged the Department to adhere to its own directives when seeking to reprogram funds. General Prohibition on Transfers. In committee language, the House underscored the absence of wall funding in the current appropriations language and its efforts to preserve previously appropriated projects from becoming a pool of funds for the Administration's efforts to construct border barriers.

The Committee recommendation does not provide these requested funds. Also, the accompanying bill includes language that protects previously appropriated projects, as well as fiscal year 2020 projects included in this bill from being used as a source for wall funding.

Prohibition on Design and Construction. Section 612 would prohibit the use of military construction appropriations provided in any act from FY2015-FY2020 to be used for the purpose of designing or constructing border barriers or access roads along the southern border. The provision uses the strongest possible legislative language by stating it would apply, "notwithstanding any other provision of law."

The House-passed Financial Services and General Government Appropriations Act, 2020 ( H.R. 3351 ) contains a provision (Section 126) that would bar the Administration's use of Treasury Forfeiture Funds for planning, designing, or executing any kind of barrier or road along the southwest border. If enacted, this language would likely prevent the use of $601 million funds approved by the Treasury Department for these purposes.

Senate Appropriations

On September 12, 2019, the Senate Committee on Appropriations reported the Defense Appropriations Act, 2020 ( S. 2474 , S.Rept. 116-103 ), which would retain transfer authorities at FY2019 levels ($4 billion for General Transfer Authority, or Section 8005; $2 billion for OCO related transfers) and contained no additional wall-related provisions.

Issues for Congress

Separation of Powers

At the highest level, the President's statements regarding the use of emergency powers to supplement the congressional appropriations process have raised questions for some about the reach of the executive branch's lawful authority.

"I could do the wall over a longer period of time. I didn't need to do this [national emergency]. But I would rather do it much faster." â President Trump, February 15, 2019

Critics also assert the President's actions risk violating the constitutional separation of powers. Article I, Section 9 of the U.S. Constitution states, "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by law." Supporters have argued the President has lawfully reallocated funds to address a national crisis.

On June 3, 2019, in a lawsuit brought by the House of Representatives that argued the Administration's actions to fund a border wall represented a breach of the Appropriations Clause of the Constitution, a federal judge ruled the legislature had no standing to sue.

In the 116 th Congress, House authorizers and appropriators have inserted provisions into annual legislation that would broadly prohibit the use of defense funds for construction of a wall, fence, border barrier, or other security infrastructure along the southern border. Some of these prohibitions would appear to apply retroactively to all appropriations since FY2015.

Section 8005 (and Related) Reprogramming Guidelines

DOD's recent decision to undertake general and special reprogramming transfers (in conjunction with 10 U.S.C. 284), "without regard to comity-based DOD policies that prescribe prior approval from congressional committees" has introduced uncertainty into a historically uncontroversial process. For some, DOD's disregard for long-standing reprogramming agreements with congressional defense committees has signaled a challenge to the legislative branch's ability to conduct oversight of approximately $6 billion in annual defense appropriations. Consequently, the Department's actions have generated new congressional interest and actions (particularly in the House) that would sharply limit the annual budget flexibility provided to the Department in authorizations and appropriations acts.

Others view DOD's recent reprogramming notifications in support of border wall construction as a justifiable anomaly in an otherwise unbroken agreement supported by the Department's own internal directives.

In cases where DOD reprogramming actions do not reflect congressional intent (or adhere to DOD directives), Congress may consider what legislative recourse might be available to prohibit future violations. In some cases, decreasing the Department's budgetary flexibility may potentially undermine DOD's ability to effectively execute congressionally directed policies and programs.

DOD's Emergency Military Construction Selection Criteria

The emergency Military Construction statute (10 U.S.C. 2808) does not limit the types of military construction projects that may be deferred based on a set of criteria, including, for example, whether such delays will affect military readiness. Nevertheless, DOD has stated it will apply its own criteria to the 10 U.S.C. 2808 pool of eligible projects in order to preserve readiness. Congress may evaluate whether DOD's guidelines are sufficient and whether they serve as a sound basis for governing future decisions.

Appendix A. Selected Communications and Documents

The tables below contains a chronology of selected communications, correspondence, and documents relevant to the use of 10 U.S.C. Section 2808 and Section 284, drawn primarily from court records. This section is intended to identify milestones in the decision-making process.

Appendix B. 10 U.S.C. 284 Reprogramming Requests

DOD has submitted two reprogramming notifications to defense committees transferring a total of $2.5 billion to the Drug Interdiction and Counterdrug Activities account.

The Department's first action, on March 25, 2019, used general transfer authority to reallocate $1 billion. Approximately 82% of this total was taken from the active duty army pay and allowances (for officers and enlisted personnel), savings realized from service recruiting shortfalls.

DOD's second action, on May 9, 2019, used a mix of $818.465 million in general transfer authority (base) and $881.535 in special transfer authority (OCO); a total of $2.5 billion.

In the table below, reprogramming actions that use special transfer authority are indicated parenthetically with the (OCO) designation.

Together, both reprograming actions reallocated $1.8 billion from base and $.7 billion from OCO defense funds. The majority of these funds were derived from Army personnel accounts and programs supporting the Afghanistan Security Forces.

The Department's two actions were sourced exclusively from appropriations that began in FY2019 and had a one- to three-year lifespan, or period of availability .

When these program savings were transferred to the Drug Interdiction and Counter-drug activities FY2019 appropriations, they became one-year appropriations. Following additional transfer actions, all appropriations were merged with an FY2019 Army Operations and Maintenance appropriations account, another one-year account.

Appendix C. Wall Projects Requested by DHS Pursuant to 10 U.S.C. 284

On February 25, 2019, DHS formally requested DOD support its ability to impede and deny illegal entry and drug smuggling activities along the southwest U.S.-Mexico border by assisting with the construction (or replacement) of fences, roads, and lighting. DHS summarized the work required:

The new pedestrian fencing includes a Linear Ground Detection System, which is intended to, among other functions, alert Border Patrol agents when individuals attempt to damage, destroy or otherwise harm the barrier. The road construction includes the construction of new roads and the improvement of existing roads. The lighting that is requested has an imbedded camera that works in conjunction with the pedestrian fence. The lighting must be supported by grid powerâ¦. DHS will provide DoD with more precise technical specifications as contract and project planning moves forward.

DHS requested DOD undertake a total of 11 projects on federal lands, which the agency identified by geographic location and unique numeric id. The Border Patrol divides responsibility for its operations along the Southwest border into nine geographic sectors. Four of these were included as part of the DHS request:

Yuma Sector Arizona. Composed primarily of desert terrain with vast deserts, mountain ranges, and sand dunes, the area encompasses 126 miles of U.S.-Mexico borderland (181,670 square miles) between California and Arizona. DHS requested DOD undertake 36 miles of vehicle barrier replacement, 6 miles of pedestrian fencing, and lighting in this sector. El Paso Sector Texas. This sector covers the entire state of New Mexico and two counties in western Texas; 268 miles of U.S.-Mexico borderland (125,500 square miles). DHS requested 70 miles of vehicle barrier (with pedestrian fencing) and lighting in this sector. El Centro California . Located in Southern California, the sector is characterized primarily by agricultural lands, eastern desert areas (where summer temperatures can exceed 120 degrees), and western mountain ranges. The sector stretches for 71 miles along the U.S.-Mexico border. DHS requested DOD undertake a mix of projects along 15 miles in this sector (vehicle, pedestrian, and lighting). Tucson Sector Arizona. Encompassing nearly all of Arizona, this areaâa particularly active one for illegal alien apprehension and marijuana seizuresâcovers 262 miles. DHS requested road construction, 86 miles of vehicle barrier (with pedestrian fencing), and lighting in this sector.

Between March and April 2019, DOD approved seven of the eleven requested projects, funding them in two tranches. One of the approved projects, Yuma 2, was subsequently terminated due to contract complications.

In August 2019, DHS notified DOD of anticipated contract savings and requested surplus 10 U.S.C. 284 funds be applied to the execution of three additional projects (Yuma 3-5). After evaluating the request, DOD agreed to undertake a modified set of projects (Yuma 4-5, Tucson 4). In September, the Department terminated the new projects after new estimates revealed the anticipated contract savings would be insufficient to undertake additional construction.

The list below shows projects initially requested by DHS and those added by DOD in subsequent modified requests. The geographic sector is indicated in the "Project Name" column, along with the project's numeric designation. Several projects not funded by the use of 10 U.S.C. 284 funds were later funded by 10 U.S.C. 2808.

For those approved for action by DOD, the funding tranche is also indicated.

In a letter to Acting DHS Secretary Kirstjen Nielsen, Acting Secretary of Defense Shanahan stated the U.S. Army Corps of Engineers would undertake the planning and construction of approved projects and, upon completion, would hand over custody of all new infrastructure to DHS.

Court Injunctions Temporarily Suspended Construction

On May 24, 2019, the U.S. District Court for the Northern District of California issued a temporary injunction in Sierra Club v. Trump , barring use of DOD's first funding tranche of $1 billion. In compliance with the court's order, USACE immediately suspended ongoing operations for the two active border barrier projects. At the time of the suspension, $423,999,999 remained unobligated (of the original $1 billion):

El Paso 1: An undefinitzed contract was awarded on April 9, 2019. At the time of the court's injunction, $389,999,999 remained unobligated. Yuma 1: An undefinitized contract was awarded on awarded May 15. At the time of the court's injunction, $35,000,000 remained unobligated.

On May 25, 2019, DOD executed a second reprogramming action of $1.5 billion. On June 28, 2019, the California district court issued a second injunction that prohibited DOD from using either of the two funding tranches ($2.5 billion total). Again, USACE project managers suspended ongoing operations.

At the time of the new suspension, approximately $752,750,000 remained unobligated from the second funding tranche ($1.5 billion):

Tucson Sector Projects 1-3: An undefinitzed contract was awarded on May 15, 2019. At the time of the court's injunction, $646,000,000 remained unobligated. El Centro Sector Project 1: An undefinitzed contract was awarded on May 15, 2019. At the time of the court's injunction, $106,750,000 remained unobligated.

Project delays have resulted in some additional costs to the government. DOD financial regulations recognize contractors are entitled to compensation for unreasonable contract suspensions, since costs continue to be incurred by idling equipment, site security, contract labor, material storage, or market fluctuations. The government is charged additional penalties for late payment (3.625% per annum). In the event an active contract is terminated, DOD would be held responsible for compensating contractors for sunk costs.

On July 26, 2019, the U.S. Supreme Court lifted the lower court injunctions, allowing construction to proceed.

Appendix D. Wall Projects Requested by DHS Pursuant to 10 U.S.C. 2808

On September 3, 2019, the Secretary of Defense, having determined that border barrier construction would serve as a "force multiplier" for reducing DHS's demand for DOD personnel and assets, directed the Acting Secretary of the Army to proceed with the construction of 11 border barrier projects. In a memorandum to the Department, the Secretary stated:

Based on analysis and advice from the Chairman of the Joint Chiefs of Staff and input from the Commander. U.S. Army Corps of Engineers, the Department of Homeland Security (DHS), and the Department of the Interior and pursuant to the authority granted to me in Section 2808, I have determined that 11 military construction projects along the international border with Mexico with an estimated total cost of $3.6 billion, are necessary to support the use of the armed forces in connection with the national emergency. These projects will deter illegal entry, increase the vanishing time of those illegally crossing the border, and channel migrants to ports of entry. They will reduce the demand for DoD personnel and assets at the locations where the barriers are constructed and allow the redeployment of DoD personnel and assets to other high-traffic areas on the border without barriers. In short, these barriers will allow DoD to provide support to DHS more efficiently and effectively. In this respect, the contemplated construction projects are force multipliers.

Of the eleven projects DOD selected for execution, seven were located (in whole or in part) on land under the jurisdiction of the Department of the Interior (DOI) that required an administrative transfer to the Department of Defense before construction could proceed. On September 18, 2019, DOI issued Public Land Orders that temporarily transferred jurisdiction of land required for five of these projects for a period of three years. In the table below, DOI-transferred lands have been indicated with an asterisk (see column marked "Jurisdiction").

Two of the eleven projects selected by DOD (El Centro 5 and Laredo 7) were located on non-public lands that will require either purchase or condemnation before construction may proceed. USACE representatives have stated that such a process would not be completed before April 2020.

The remaining two projects (Yuma 2 and Yuma 10/27), are located exclusively on the Barry M. Goldwater Range (BMGR), a military installation under the jurisdiction of the U.S. Navy where construction may begin immediately.

The table below indicates the eleven projects DOD has agreed to fund using 10 U.S.C. 2808 funds, and describes the estimated cost of construction, the jurisdiction of associated lands, and a description of the parcel.

Appendix E. Military Construction Projects Deferred Pursuant to 10 U.S.C. 2808

On September 3, 2019, DOD delivered to congressional defense committees a list of ongoing military construction projects the Department had selected for deferral pursuant to 10 U.S.C. 2808. The list had been preceded by two additional notifications that identified potential military construction projects that might be affected by use of the statute.

The first of these three lists of military construction projects, delivered to defense committees in March 2019, identified all military construction projects that had not yet received contract awardsâmaking them vulnerable for selection under 10 U.S.C. and the Department's independent internal criteria. A second list, which DOD delivered to defense committees in late May 2019, selectively updated the contract award dates of some military construction projects. The final list, comprised of approximately 127 projects ($3.6 billion), updated the contract award dates for six projects ($209 million) located outside of the United States, making them newly eligible for selection. Additionally, the Department's final list included one planning and design project ($13.6 million) not included in previous notifications. The table below summarizes this final list.