Pentagon Diverts $1 Billion for Illegal Wall Funding

The (Acting) Secretary of Defense has issued an unconstitutional order.

NPR (“Pentagon Authorizes $1 Billion For Fence Construction At Mexico Border“):

The Pentagon has officially informed Congress that it’s shifting up to $1 billion in appropriated funding to build a 57-mile fence and other projects at the southern U.S. border. The notice comes after President Trump took the rare step of declaring a national emergency to get more border security funding than Congress would allow.

Acting Defense Secretary Patrick M. Shanahan told the U.S Army Corps of Engineers to begin using the money to support operations by the Department of Homeland Security (DHS) and Customs and Border Patrol, the Department of Defense said.

The money nearly doubles the $1.3 billion Congress authorized for border wall funding. Trump had requested $5.7 billion.

Objecting to the Pentagon’s plan, Democratic senators sent a letter to Shanahan stating that by transferring money without the appropriate congressional committees, the Defense Department had violated the defense appropriations bill.

“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 senators wrote.

Shanahan will face those concerns and criticisms on Tuesday, when he discusses the border construction project and the Department of Defense’s current budget of more than $717 billion at a hearing of the House Armed Services Committee.

Trump vetoed Congress’s attempt to reverse his emergency declaration earlier this month, allowing his administration to move ahead with controversial plans to fulfill his campaign promise to build a wall along the border with Mexico and clamp down on illegal immigration. The House is set to vote on a possible override of that veto Tuesday.

A Pentagon statement about the move did not specify which part of its budget would yield the $1 billion for the project.

In a news release counter-intuitively titled, “DOD Authorizes Support to Counter Drug Border Security,” the agency announced:

“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.”

The Pentagon news release then cites 10 U.S.C. § 284(b)(7) — the federal statute that gives it authority to build fences and take other measures to support federal law enforcement agencies that are working to stop drug trafficking.

WaPo (“Pentagon announces $1 billion transfer for border barriers, angering Democrats“) adds:

The Pentagon announced Monday night that it has authorized the transfer of up to $1 billion to the Army Corps of Engineers to build additional barriers along the U.S.-Mexico border, a move that drew sharp objections from Democratic lawmakers.

The shift in funds, which the Pentagon justified under President Trump’s declaration of a national emergency at the southern border, will facilitate the construction of 57 miles of “pedestrian fencing,” road construction and lighting along stretches of the border in Arizona and Texas.

Ten senators, including Patrick J. Leahy (Vt.), the top Democrat on the Appropriations Committee, objected to the move, saying in a letter that the Pentagon had not sought approval of congressional defense committees.

“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,” said the letter to acting secretary of defense Patrick M. Shanahan and Secretary of Homeland Security Kirstjen Nielsen. “The $1 billion reprogramming that the Department is implementing without congressional approval constitutes a dollar-for-dollar theft from other readiness needs of our Armed Forces.”

This is blatantly unconstitutional and will almost certainly be struck down by the courts now that it’s official rather than merely a threat. The notion that the Secretary of Defense can unilaterally transfer a billion dollars to another agency without authority from Congress is mind-boggling.

The provided justification is absurd. First off, the authority in the Act specifies that “Support [is] not to affect adversely military preparedness.” We already have a service chief, the Marine Commandant, saying that support for border operations is harming his ability to train Marines for their combat role. More importantly, the authority is limited to $75 million.

UPDATE (10:55) Shanahan is currently testifying before HASC and NPR has updated the original report:

The Pentagon won’t allow its plan to spend $1 billion in to build a 57-mile fence at the southern U.S. border to interfere with military readiness, Acting Defense Secretary Patrick M. Shanahan told members of Congress Tuesday, seeking to ease concerns about the controversial shift of appropriated funding made possible by President Trump’s declaration of a national emergency.

The Department of Defense is shifting the money from a military personnel account — funds that it says were freed up after some service branches fell short of their recruiting goals.

“Military construction on the border will not come at the expense of our people, our readiness, or our modernization,” Shanahan told the House Armed Services Committee Tuesday.

But in response, Committee Chairman Adam Smith, D-Wash., said the move would likely compel Congress to strip the Pentagon of the authority to “reprogram” funds that have been appropriated for specific purposes and programs. That authority is currently provided only in cases where the Pentagon consults with Congress before acting. But in this case, Smith noted, the Defense Department did not ask permission.

“Given a legal order from the commander in chief, we are executing on that order,” Shanahan replied. He added that the Pentagon knew there were “downsides, which will hamper us” — including likely losing what he called the privilege of reprogramming funds.

“I appreciate the inherent intra-government complexities of the southwest border situation” Shanahan said in his opening statement. “I also want to emphasize: The funds requested for the border barrier amount to less than one percent of the National Defense topline.”

Shanahan is obviously in a tight spot here, although I would think his legal advisors would have told him to reject Trump’s order as illegal. Regardless, this is quite likely to result in Congress restricting DoD flexibility.

FILED UNDER: Military Affairs, National Security, U.S. Constitution
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Pete S says:

    I hope that Shanahan gets asked exactly how many more billions can the Department of Defense transfer out without impacting combat readiness. I also hope that at the very least Patrick Leahy makes clear to him that future Defense budgets will be looked at very skeptically since they have so much extra money sitting around.

  2. Daryl and his brother Darryl says:

    Laughable that Dennison can’t ride his so-called Mueller exoneration, without another fuq-up wiping it out.
    See you in court, you fat orange turd.

  3. Kathy says:

    The mean deep state won’t let the administration break the law or rape the Constitution. That’s treasonous.

  4. James Joyner says:

    @Kathy: In this case, the Deep State is letting it happen so it’s up to the courts and congress to stop it.

  5. Daryl and his brother Darryl says:

    Wait…are we talking about Mexico’s DOD?
    Because Mexico is paying for the wall, right?

  6. jpe987 says:

    I would think his legal advisors would have told him to reject Trump’s order as illegal.

    That is genuinely ridiculous. Trump has a reasonable argument; it’s for the courts, not the DOD, to weigh the legal niceties.

  7. gVOR08 says:

    Given a legal order from the commander in chief, we are executing on that order

    I vass only following orders. (And he gets to define legality?)

    57 miles of “pedestrian fencing”, some road repair and construction, and some lighting. Boy, a billion dollars doesn’t go near as far as it used to. And a piss poor excuse for a wall.

  8. Daryl and his brother Darryl says:

    @James Joyner:

    so it’s up to the courts and congress to stop it.

    House just failed to over-ride Dennison’s veto…so it’s all up to the courts.
    The Constitution, written by the likes of Thomas Jefferson, James Madison, Thomas Paine, and John Adams…is now in the hands of Justice Boof.

  9. DrDaveT says:

    A little inside baseball here:

    Reprogramming authority is utterly vital to effective use of funds. No plan survives contact with reality, and that includes plans for how much money things are going to cost year by year. With reprogramming authority, the Pentagon can shift money from things that turned out to be cheaper than expected (or that were slow to get started) to things that turn out to be more expensive than expected, within a fiscal year, without incurring the damage to progress that funding shortfalls cause.

    The Pentagon actually has less reprogramming authority at the individual project level than most federal agencies. That’s partly because individual Pentagon line items tend to be so expensive, and partly because Congress likes to micromanage the defense budget. (To be fair, DoD has earned that extra scrutiny over the years. Read The Pentagon Wars some day.)

    Further reducing the Pentagon’s reprogramming authority would throw grit in the gears of many ongoing programs, further reducing the cost-effectiveness of defense dollars. It would be a small tax paid in a thousand different corners of the budget, adding up to huge losses. For the Pentagon to risk that, in order to keep the Cheeto from pouting, is… shortsighted.

  10. An Interested Party says:

    That is genuinely ridiculous. Trump has a reasonable argument…

    Why is that ridiculous? What is this alleged reasonable argument?