Vice Chairman Leahy Floor Address On President Trump Raiding Military Dollars For The Wall, And On The Assault Of Congress's Constitutional Powers Of The Purse

Last week the Administration announced that it was raiding $3.6 billion from military construction projects to pay for President Trump’s ineffective and controversial border wall.  

A new middle school at Fort Campbell, Kentucky, a child development center at Joint Base Andrews in Maryland, a new elementary school in Puerto Rico, and a fire-rescue station at Tyndall Air Force base in Florida, are among the projects canceled on orders from a President who apparently values a cynical campaign promise over our men and women in uniform and their families. 

And let’s not forget, on the campaign trail he repeatedly promised that Mexico would pay for the wall.  And his supporters cheered about that.  Mexico would pay!  Have my friends on the other side of the aisle forgotten that?  Now, after unsurprisingly failing to convince Mexico to do so, he is forcing our troops and their families – who already sacrifice so much to keep our country safe – to sacrifice yet again just to keep his ego safe.  

This announcement should outrage every United States Senator, and not just because it is an insult to our troops, which it is, but because it is part of a larger pattern by this President to disregard the Congress and to subvert the Constitution.  And he is doing so not in furtherance of our national security or to address the very real humanitarian needs along our border.  He is doing so merely in service of his own ego.  This cannot go unchallenged.     

Article 1, Section 9 of the Constitution established that Congress – and Congress alone – possesses the power of the purse.  Congress’s exclusive power over our government’s spending priorities is one of the most critical checks and balances in our constitutional system.  The President can propose funding for whatever projects he wants, but it is the job of Congress to decide where to invest the American people’s hard-earned tax dollars.  And in a democracy, the President must respect those decisions.  But this President apparently hasn’t bothered to read our country’s foundational document. 

When President Trump declared a national emergency in February, citing a crisis at the southern border, he did so for only one reason: to do an end-run around Congress and the Appropriations Committee, and use taxpayer money to build a wall on the southern border when Congress specifically chose to downsize his request by $4.2 billion. 

In citing 10 U.S.C. 2808, an authority unlocked by the declaration of a national emergency, and using it to raid military construction projects to pay for the wall -- projects Congress determined were important and worthy of federal dollars -- he has contorted the law beyond all recognition, and undone congressional funding decisions by fiat.   

This should concern any Senator in a state where critical military construction projects are being canceled to pay for President Trump’s obsession with a medieval wall.  And it should concern those of us who believe that the Constitution should carry more weight than the whims of a President who genuinely thinks – and has actually said out loud – that the Constitution gives him the “right to do whatever I want as president.” 

Only a few weeks ago the Administration yet again disregarded objections from Congress and announced plans to divert $116 million we appropriated to the Department of Homeland Security for national security purposes, as well as $155 million from FEMA’s wildfire and hurricane disaster relief fund, and use it to detain more immigrants by increasing the number of ICE detention beds and building court facilities for the deeply misguided, dangerous, and cruel Remain-in-Mexico program. 

The level of funding for ICE detention beds was set in the FY 2019 Department of Homeland Security Act, passed by Congress and signed by the President just six months ago.  It was one of the last issues resolved.  Like the wall funding, it was central to the final agreement.  I had serious concerns with the funding level we agreed to at the time and I still do — there is no reason to turn to mass incarceration when most people crossing our borders are desperately fleeing violence in their home countries, not seeking to do any harm to ours.  More humane and cost efficient ways to address these issues exist. 

But a deal is a deal, and the President signed that bill into law.  For the President to undue it only months later by increasing funding for ICE through transfers is outrageous.   The FY 2019 DHS Appropriations Act set a level of funding that required DHS to end the fiscal year with a bed ceiling of 40,520.   The Department is now operating at a level of 52,930 beds  – a 31 percent increase.  All without the approval of Congress.  

The President will say that he is merely relying on general transfer authority provided to him by Congress in the DHS Appropriations Act to increase money for ICE detention beds.  This is ridiculous and it is disingenuous.

Congress provides the Executive Branch certain transfer authorities so it can be flexible and react in real time to emergencies, unanticipated needs, and changed circumstances.  We have provided this flexibility for decades for Presidents of both parties because it was the responsible thing to do.  No government can anticipate all of its needs at the beginning of each fiscal year and we trust the Administration will use this authority appropriately. 

In return for this flexibility, past Administrations have respected the will of Congress and, for the most part, when the Appropriations Committee objected to a transfer or reprogramming, the objection was honored, or a compromise reached.  This President, however, has thrown that tradition out the window and decided that consulting Congress is a box-checking exercise, to be summarily disregarded.  

For the second year in a row, he is increasing money for ICE detention beds over the objection of the Appropriations Committee and in violation of the agreements reached in the DHS Appropriations laws.  Earlier this year, he also used transfer authority to divert $2.5 billion from Department of Defense accounts to pay for his wall after Congress refused to fund it in the DHS Appropriations Act -- this is in addition to the $3.6 billion he recently announced he will take from military construction projects, and $600 million that he took from the Treasury Asset Forfeiture account for the wall. 

And he is doing all this while refusing to spend the money Congress appropriated to address the root causes of migration in Central America.  Where will it stop?  And when will members on the other side of the aisle take a stand and defend this institution? 

So far, the abuses of authority have been used in ways that mostly impact issues Democrats care about, and Republicans have stood silent.  But what happens when this Administration crosses a Republican red line?  What about members from states impacted by the canceled military construction projects?  Will they at least stand up for their states, if they won’t stand up for the Congress, or the Constitution? 

Just last month the Administration threatened to cancel over $4 billion in foreign assistance, in blatant violation of the law.  These funds were appropriated by overwhelming bipartisan majorities and after lengthy negotiations between the House and Senate, and including the White House.  They were signed into law by President Trump.  These funds were intended to implement policies and programs which, among other things, fulfill U.S. treaty obligations, support our allies and partners, protect the public against Ebola and other infectious diseases, counter Russian aggression and Chinese influence, respond to humanitarian crises, and counter violent extremism.  The President backed down from this threat, but what if he had not?  And now we hear reports that he is withholding $250 million in aid to Ukraine meant to counter the Russian invasion of that country. 

This week we will begin marking up the Fiscal Year 2020 Appropriations bills in Committee.  If we care about this institution, members on both sides of the aisle need to stand up for the power of the purse, granted to it under Article 1, Section 9 of the Constitution.   I plan to do so by offering amendments to appropriations bills to undo the President’s actions on the wall, and to limit his flexibility to transfer and reprogram money, which he has so abused. 

I urge all members of the Committee to support me in this effort.  Our country was built on the concept of separation of powers.  This is meaningless if Congress cedes one of its most important powers to the Executive Branch, or refuses to take a stand when the Administration overreaches, ignores Congress, or breaks the law. 

We may disagree on the utility of the President’s wall, but we should not disagree on the constitutional role of this body.  The President may not care about our system of checks and balances, but every one of us here should.  Political winds tend to change direction.  It is time to reassert ourselves.  And do so before it’s too late. 

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CONTACT: Jay Tilton 202-224-2667