In response to reports that President Donald Trump has directed Pentagon to explore diverting a portion of military funding to construct a border wall, U.S. Sens. Jack Reed (D-RI) and Dick Durbin (D-IL) asserted on Monday that the Pentagon lacks legal authority to build a border wall.
In a letter to U.S. Secretary of Defense James Mattis, the senators wrote that they reached the conclusion that the Pentagon lacks legal authority to build a wall along the U.S.-Mexico border after a “thorough review of appropriations law.”
Reed, the ranking member of the Senate Armed Services Committee, and Durbin, the vice chairman of the Senate Appropriations Subcommittee on Defense, wrote that funds appropriated by Congress “are limited to the purpose for which they were intended.” The Department of Defense Appropriations Act of 2018 allocated funds for the “pay, operations and equipping” of the armed forces, the senators continued.
Reed and Durbin noted that while the defense spending bill allows for funds to be transferred or reprogrammed among appropriation accounts, the provision requires that transferred funds be used for the same purposes as the appropriation or fund that they were transferred to. The provision also stipulates that reprogrammed funds be used for “higher priority items” and “in no case where the item for which funds are requested has been denied by the Congress.”
“In other words, a reprogramming request cannot create a new purpose for any funds, all reprogrammings must be for unforeseen military requirements, and a reprogramming cannot undo a rejection by the Congress of funds for a certain purpose,” the letter stated.
Reed and Durbin noted that Congress approved Bush Administration funding requests for the National Guard to assist the Department of Homeland Security in constructing roads and fences along the Southwest border through Operation Jump Start. As a result, Congress approved $708 million and $247 million in 2006 and 2008, respectively. However, a budget amendment signed by President George W. Bush in 2006 stipulated that “the Department of Defense had no inherent legal authority to use appropriations for those more limited purposes,” the letter stated.
“Based on a thorough review of appropriations law, the text of the Department of Defense Appropriations Act of 2018, and the 2006 and 2008 appropriations made for the National Guard to conduct specific construction activities near the border, we conclude that the Department of Defense has no legal authority, with or without a reprogramming request, to use appropriated funds for the construction of a border wall,” the letter concluded. “Further, since no funds have been appropriated for that purpose, we conclude that an expenditure of funds by the Department of Defense for the construction of a border wall would very likely violate the Antideficiency Act.”