Build That Wall

Shutdown averted

Congress has approved a border security compromise bill. They intend the bill as a device to avoid a second government shutdown. The bill appropriates about $1.4 billion of the $5.7 billion requested for border barrier construction. The White House said the president would sign the legislation passed Thursday. It also said the President would act unilaterally to build the wall.

Wall funding is inadequate

The $5.7 billion the president had requested was about 0.3% of the appropriation bill. The $1.4 billion is far below the $5.7 billion Trump requested. For those keeping score, this is a congressional attempt to box Trump in. They are trying force him to accept 24.5% of what he had requested for the border wall. The congressional appropriation would finance just a quarter, that’s 50 of the 200 miles of barrier he wanted.

The administration response

The administration’s plan is to declare a national emergency. That move allows the president to repurpose money from other parts of the federal government. Under the 1976 National Emergency Act money can be redesignated by the president unilaterally for Mexican border wall construction. The move bypasses the obstructionist lawmakers.

Acting White House chief of staff Mulvaney said the administration will tap various sources of money to build the wall. They will repurpose a total of about $8.1 billion. $1.4 billion from Congress’ bill, plus $600 million in Treasury forfeiture funds, plus $2.5 billion in Defense Department counterdrug money plus about $3.6 billion from military construction projects will be used. The administration move does not tap designated disaster relief money. Money to help Texas and Puerto Rico following recent hurricanes is not at risk.

The announcement of the intention to declare a national emergency prompted condemnations from Democrats. They threated lawsuits; lawsuits from states and lawsuits from others who might lose federal money. The opposition accuses Trump of abusing his authority.

Bring on the clowns

The administration move sets up yet another confrontation. Based on the last two years the move seems certain to receive a judicial challenge. Legal precedent would lead us to be confident the challenge will fail. Based on an activist judiciary, jurisdiction shopping, and the living document approach to the constitution any combination of decisions is possible. At this point every federal judge can convert the entire federal government into their own plaything. Enter the clowns from the 9th Circus Court of Appeals.