How Congress and President Obama Made Trump’s Wall Possible

Lawfare Blog:

Throughout the 2016 election, Donald Trump campaigned for president on the promise that he would build a wall along the southern border. Six weeks after his election in November 2016, Congress overwhelmingly passed a statute—codified as 10 U.S.C § 284—that authorized the secretary of defense to support the “construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” On Dec. 23, 2016, a month before leaving office, President Obama signed the 973-page bill into law without any objection to this provision.

On Feb. 15, the Trump administration invoked this express statutory delegation of authority to do what the statute says: “construct … fences … across international boundaries of the United States.” Specifically, the president identified up to $2.5 billion under the Department of Defense funds that were designated for counterdrug activities. This provision does not turn on the declaration of a national emergency pursuant to 10 U.S.C. § 2808, which the president also invoked in a proclamation issued the same day. Critically, the White House stated that “these funding sources will be used sequentially and as needed.” The “emergency” funds may not be tapped until the other, less controversial funds are depleted. Plaintiffs may not have standing to challenge the diversion of “emergency” funds until those funds are in fact allocated. Through § 284, both Houses of Congress willingly gave President Trump a path to build at least part of the wall.

This episode illustrates how Congress long ago relinquished its lawmaking powers. The legislature enacts omnibus bills that few members actually read. Often, these super-duper-statutes contain nearly-limitless delegations of authority to the executive branch, with only the flimsiest guidelines on how and when that authority should be executed. Other times, Congress gives the president the exact authority he needs, with few strings attached. Such is the case with § 284: Obama signed a bill into law that gave his successor the very precise power to “construct … fences … across international boundaries of the United States.” Moreover, a predecessor of this statute, known commonly as Section 1004, has been in effect since 1990. Critically, other long-standing provisions allow the president to shift appropriations around to fund that construction.

Trump’s decision to rely on § 284 reflects, once again, an instance where he relies on express delegations of power to accomplish awful policies. Congress cannot claim that the president is subverting the rule of law when it gives him the precise authority he needs to accomplish his goal. In January 2017, Democratic Senator Jack Reed said that Congress could block the president from relying on this statute to fund the fence—and certainly that could work prospectively. But Congress is responsible for enacting this statute in the first place.  more here