‘Emergency’ Declaration to Fund Wall Would Be a Mistake

Blog Post
Monday, January 14, 2019

Up until a few days ago it seemed that President Trump was looking to exit the partial government shutdown by redirecting funds for a Mexican border wall through an emergency declaration.

As he approached this exit, however, he found that the off-ramp was closed for construction. Critics within his own party stood in the way.

Good thing.

Whether you support or oppose the construction of a border wall, trying to fund it through “emergency powers” would be the wrong way to go. It would be a distortion, if not an outright abuse, of limited presidential powers. It would surely make future budget negotiations more difficult and, in the end, it would not get the wall built.

Emergency declarations were not made for the current circumstances. They are an exception to the clear mandate of Article I Section Nine of the U. S. Constitution that “No money shall be drawn from the treasury, but in consequence of appropriations made by law.”

Various statutes give the president authority to redirect appropriated funds for limited purposes, often related to military action. None of them were intended to let the president get around policy disputes by simply ignoring the wishes of Congress.

Context matters when considering whether emergency powers should be claimed. There is a profound distinction between, for example, constructing a temporary facility to support an imminent military operation, which itself must be funded by Congress, and construction of a permanent 1,950-mile wall along the border with a country we are not at war with.

In short, the emergency circumstances a president relies upon to exercise unusual powers should not be the mere need to extract himself from a political quandary.

Beyond the legalities, which would be a matter for the courts to decide, there are very practical reasons to bypass the emergency declaration off-ramp.

For one thing, it would likely expand rather than end the funding standoff. House Democrats could well respond by attaching a ban on such funding to any and all Fiscal Year 2020 appropriation bills. Since the Senate and the president would be unlikely to go along with this, it would guarantee that no appropriation bill would pass, forcing a full government shutdown at the end of the current fiscal year in September.

In the meantime, the redirected funds would be subtracted from their intended use. This would invite a new confrontation over the “raid” of popular bipartisan items such as military construction and natural disaster relief.

Short-circuiting the normal appropriations process might also tempt either the House or the president to up the ante by refusing to raise the debt ceiling, which will need to happen sometime after March 1, when the current ceiling-suspension period runs out.

The potential consequences of failing to raise the debt ceiling would be even more harmful than a shutdown because it would turn a dysfunctional government into a dysfunctional deadbeat government.  

Finally, even if the president were eventually able to convince the courts that he has the statutory right to redirect appropriated funds pretty much at will, he would not be able to secure a reliable ongoing source of funds to construct and maintain his envisioned wall.

Construction alone would require far more to finish the job than the initial $5.7 billion the president is asking for. In his last budget, the president requested $18 billion for the wall over 10 years. Other estimates suggest the number could go higher.

According to Reuters, a Department of Homeland Security internal estimate put the cost at $21.6 billion. The Cato Institute says the wall could cost $59.8 billion.

These estimates do not include the additional cost of acquiring private land on which to build the wall and the annual costs of staffing and maintaining it.

The more you look at it, the more complicated and troublesome this “easy” solution becomes.

Eventually, there must be a solution to the shutdown over the border wall. People are being hurt by the loss of government services. Federal workers who aren’t getting paid have become innocent victims, and no progress is being made on the shared goal of improving border security.

If the emergency off-ramp is closed, as it should be, perhaps the president should change his destination. Border security is the main goal. There ought to be a way to get there.