Notice & Comment

Why the Transfer of Funds to Build the Wall Is Likely Illegal

Recently I wrote a post on why the reprogramming of funds from the Support for Counterdrug Activities fund (10 U.S.C. § 284) to build the wall is likely legal. However, the $2.5 billion that President Trump said he would reprogram are not currently available in the fund. As such, to get funds to use 10 U.S.C. § 284, the Department of Defense has stated that it will transfer $1 billion from military personnel funds, with $1.5 billion to come later. Those transfers are likely illegal.

While the term reprogramming has been used to describe both (1) the shifting of funds within the congressional appropriation for Counterdrug Activities and (2) the movement of funds from the military personnel appropriations, they are separate concepts with separate legal standards. The Government Accountability Office (GAO), defines the shifting of funds within an appropriation to purposes other than those contemplated at the time of appropriation as a “reprogramming.” The Supreme Court has held that absent a specific legal prohibition on reprogramming funds, an agency has discretion to reprogram funds within a single appropriation. Conversely, GAO defines the shifting of funds between appropriations as a “transfer.” The legal standard for transfers is the opposite of reprogramming as 31 U.S.C. § 1532 holds that transfers can occur “only when authorized by law.” As the $1 billion would be coming from another appropriations account, a specific law must authorize the transfer.

Although law does authorize the transfer of Department of Defense funding under limited circumstances, all relevant requirements are likely not met. Section 8005 of the Department of Defense Appropriations Act, 2019 and 10 U.S.C. § 2214 both include nearly identical authority to transfer Department of Defense appropriations. Although not providing authority for a congressional committee to deny a transfer, the provisions require, in part, that the transfer of funds must be “based on [1] unforeseen [2] military requirements, than those for which originally appropriated and [3] in no case where the item for which funds are requested has been denied by the Congress.”

First, the transfer is not likely based on unforeseen requirements. President Trump campaigned on building a wall along the border with Mexico and included a request for money to build the wall in his fiscal year 2019 budget. The Department of Defense could argue that although the wall was previously contemplated, the need for the wall to provide support for the counterdrug activities was unforeseen. However, the fiscal year 2019 budget request specifically mentions decreasing the flow of illegal drugs, criminals, terrorists, and gang members. As such, the transfer of funds is likely illegal as the need for the money was not unforeseen.

Second, the transfer is not likely based on military requirements. Much like the arguments regarding the national emergency declaration allowing “military construction projects,” the transfer has to be based on a military requirement. As the wall is under the jurisdiction of the Department of Homeland Security (DHS), the construction of the wall is likely not a military requirement. Further, DHS has indicated that it intends to extend its authority to waive environmental studies for its building of a wall to the Department of Defense funds used to build the wall. The Department of Defense cannot have its cake and eat it too. The Department of Defense would likely struggle to argue that the wall is a military requirement for the purposes of transfer authority, but a DHS project for environmental study purposes.

Third, it is an open question whether the request to transfer funds was denied by Congress. Although Congress denied President Trump’s request to fund $5 billion to build the wall, that request was for DHS, not military funding. As Congress generally must be explicit if it wishes an appropriations provision to apply to another act (i.e., the military appropriations referring to DHS appropriations), the rejection provision could be construed to refer only to a rejection of additional funds in the Support for Counterdrug Activities account. I could see a court going either way on this issue.

President Trump has the authority to virtually reprogram funds at will, but he has limited authority to transfer funds. As such, the transfer of $1 billion in funds to build the wall is likely illegal. This issue may soon come to a head as a group of Senators have officially requested that GAO review the matter.

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