Many in Washington and the media or declaring President Trump’s push for the wall DOA and Nancy Pelosi the winner now that the longest government shutdown in history has ended. Some suggest that unless Trump declares a national emergency, the wall will never be built. But is there another way?
A nonpartisan group called the Congressional Research Service (CRS) released a paper that may have answered that question. Trump could authorize the Department of Defense (DOD) to use some of its resources to build a border wall without the approval of Congress or a declaration of a state of emergency.
Part of the CRS document declares:
Another statute that authorizes the Secretary of Defense to assist civilian law enforcement with counter-drug activities may provide some authority for the construction of barriers along the border.
Section 284 of 10 U.S. Code § 284 authorizes the DOD to provide support for counter-drug activities and activities to counter transnational organized crime.
Section 284 only extends the empowerment of the DOD to divert funds to the border where there are drug smuggling corridors’ but one congressional aide told The Daily Caller that “drug corridors are not defined in law.”
Trump announced from the Rose Garden of the White House on January 25th he would sign a measure that would allow the government to be funded for 21 days. After that he reminded Congress that it has only a few weeks to offer a real compromise or he will take whatever measures necessary to ensure the wall is built. He tweeted that same day: “21 days goes very quickly. Negotiations with Democrats will start immediately.”
Today he added in a tweet: Will not be easy to make a deal, both parties very dug in. The case for National Security has been greatly enhanced by what has been happening at the Border & through dialogue. We will build the Wall!
Perhaps Trump has been listening to the CRS because in his Rose Garden address, he emphasized the humanitarian nature of a border wall. He said that those trying to enter the country illegally “desperately needed humanitarian assistance for those being exploited and abused by coyotes, smugglers, and the dangerous journey north.”
There was no mention of an executive order this past weekend but Trump left the door wide open to finding a way to build the wall. He said the country faces a crisis as well from the impact of illegal drugs entering the country via the southern border. He again emphasized that the “drug cartels must be stopped” and he would ensure they are.
In his words on Saturday, the president quoted Border Chief Mark Morgan, “We absolutely need a physical barrier or Wall, whatever you want to call it. The President yesterday laid all that out. We need to do it all, including the Wall. I provided the same information to the previous administration, & it was ignored.”
The issue of the possibility of an impending executive order had even divided Republican powers like Senators Chuck Grassley and Lindsey Graham.
During an interview on CNBC’s Squawk Box, Grassley said that a national emergency declaration “sets bad precedent” because it “contravenes the power of the purse that comes from the elected representatives of the people.”
That came less than 24 hours after Republican South Carolina Senator Lindsey Graham adamantly called for the President to take executive action. Graham said that the Democrats “refusal to negotiate on funding for a border wall/barrier, even if the government were to be reopened” has all but ended any Congressional path to funding a wall.
Graham said last Thursday: “It is time for President Trump to use emergency powers to fund the construction of a border wall/barrier.”
Both Grassley and Graham are right. Barack Obama used executive orders with abandon and it’s taken President Trump almost two years to undo that damage.
DACA is one glaring example of the bad precedent of executive order.
CRS suggests a third option: forget Congress altogether and order the Department of Defense to do what it has already been commissioned to do. Part of that is found in 10 U.S. Code § 284:
Construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.
So while many count Trump out, perhaps he is already thinking about a better option for which the money has already been allocated.
