What You Missed During the Cohen Hearing: A Border Wall Brawl

The House Appropriations Committee called forth Department of Defense officials to testify on emergency funding for the border wall (photo from the House Appropriations Committee, February 27, 2019).

While national attention honed in on Michael Cohen’s second appearance before Congress — and the contentious, tenor-setting back-and-forth between Representative Meadows and Chairman Cummings in the first minutes of the hearing — another brawl was happening just a few steps away in the House Appropriations Committee.

Congressional members of this committee, who traditionally hold ‘the power of the purse’ in allocating where our federal money goes, brought officials from the Department of Defense in on Wednesday to testify on how exactly the Department was going to come up with the billions of dollars to construct the border wall, after the president’s national emergency declaration gave them statutory authority to do so. Although Congress expressly did not allocate the $5 billion to wall-constructing in its fiscal year 2019 budget, the president is mustering the funds anyway by now ordering his agencies, especially the Department of Defense, to re-direct money Congress gave it for its various projects and their maintenance (such as money for the reconstruction of the Tyndall Air Force Base after it was destroyed by Hurricane Michael).

This has elected officials angry. If the president could just get his money by temporarily de-funding Department of Defense projects Congress did authorize in order to fund a border wall Congress explicitly did not sign-off on, and with no end in sight to the life of these expansive national emergency powers, Rep. Tim Ryan wondered aloud: “Then what the hell are we here for?”

Congresswoman Schultz cornered Assistant Secretary MacMohan of the Department of Defense, asking him whether the DOD was circumventing Congress by tapping into funds it had already appropriated for specific projects and instead using them to fund this border wall, just to return to Congress in 2020 asking for the funds it actually needs to maintain and complete its military projects.

When Assistant Secretary MacMohan responded, saying that the Department of Defense was just following executive orders, Congresswoman Schultz said point-blank: “Okay Mr. Secretary, you are fooling no one, really. I am not sure what kind of chumps you think my colleagues and I are.”

The DOD’s main strategy moving forward is to increase its border wall budget well beyond the $1 billion allocated by Congress in its final Fiscal Year 2019 appropriations bill. It will do so by first surveying all existing projects with funding across the agency (that is, across the entire armed forces) and then tapping into money that has not yet been contracted. Although the DOD will be prioritizing their de-funding strategy around projects least likely to impact the military’s capabilities and readiness, the Appropriations Committee doesn’t buy it.

After repeatedly questioning Assistant Secretary John Henderson of the Air Force on how military readiness will be impacted by internal fund-moving, Rep. Schultz ended the hearing with one final attempt: “Given that we have to repay the money you’re spending now, that we have FY 19 projects that are likely going to be taken and that will ultimately be taken from rebuilding true emergencies like Tyndall; doesn’t that mean that the national emergency declaration by the president is going to effect military readiness?” With no clear response from the Department of Defense officials, Rep. Schultz answered the question for herself — “Yes it does.” From the Committee’s perspective, there is no way to fudge the DOD’s budget to pay for a wall without damaging military readiness; no projects that they allocate money for are deemed really negligible.

And although the Department of Defense has agreed to make the Committee aware of which projects it will end up delaying, the Department of Defense provided a more lukewarm answer to whether it will need Congressional approval for further fund-warping to build the wall: it went something like, “sorry, no” (they will only have to go through the White House’s Office of Management and Budget now).

From the chastisement, reprimands and frustration of the Appropriations hearing, the divide between the will of the legislature and the will of the executive branch could not be more stark. Outside of the Vietnam war, few examples come as close to the Department of Defense and the presidency’s current bypass of the will of the people — of the complete circumvention of elected officials which the public most recently voted into Washington. At least after 9/11 (which was the last time the currently live national emergency statute, 10 U.S.C. Section 2808, was invoked), the President gained a decent amount of explicit, bicameral approval from Congress for many of its executive actions (and not without subsequent debate).

But here, after hearing at this point for a while about the president’s focus on the crisis at the border, Congress explicitly passed an appropriations bill — after debating the $5 billion wall tab for weeks — without the $5 billion for the wall. The president and his agencies going after this money anyway is a blatant disregard of the consensus reached and the law passed by the elected members of Congress as to how this money is to be spent.

This is also the only instance in United States history, it seems, where a president has gone after a funding project after Congress denied that funding project. Although President Reagan went ahead with his Export Administration Act through his national emergency powers in 1983, the executive branch went around a Congress that had failed to seriously take up a renewal of that Act or that failed to expressly condemn it.

At the current moment, lawsuits have been filed across the nation, attempting to halt this significant expansion of executive powers. Given that these lawsuits are spread out across the United States, this case will most likely and eventually reach the Supreme Court, where everything from the discretion involved in the word “crisis” to the fundamental legality of the National Emergencies Act may be up in the air. As of now, the Department of Homeland Security is reviewing what border constructions they need and where they need them. Then they will send the build-list to the DOD, which will find a way to foot the bill by cutting away at projects — “not terminating, just delaying.” We can expect this to continue until the next fiscal year rolls around, and the DOD seeks funds again from those representing American taxpayers. This all leaves one to wonder: where did all the fervor about taxation without representation go?

Former Managing Editor at the Harvard Health Policy Review, Masters student in the history of international policy at Cambridge.

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