The Pentagon informed Congress on Thursday of its plans to divert the $3.83 billion from the purchase of aircraft and other equipment and instead use the funds for the construction of border barriers. The Pentagon is moving the money using a counternarcotics law that allows the Defense Department to build fencing for other federal, state and local agencies in known drug-smuggling corridors.
According to budget documents reviewed by The Washington Post, the Pentagon is pulling the funding from two F-35 fighter jets and two Osprey tilt-rotor aircraft for the Marine Corps; one P-8A reconnaissance aircraft for the Navy; and four C-130J transport planes and eight MQ-9 Reaper drones for the Air Force.
In addition, funding will be diverted from programs to update Humvees and trucks for the Army, buy $1.3 billion in “miscellaneous” new equipment for the National Guard and Reserves and develop certain U.S. Navy vessels. The Pentagon told Congress the funding is either in excess of the military’s needs or is not yet needed given the timeline of the programs in question.
The $7.2 billion the White House is targeting in the Pentagon budget this year would give Trump enough money to complete nearly 900 miles of new barriers by 2022, a plan that allows him to campaign for reelection on his signature immigration initiative — and the budget to pay for it.
Robert G. Salesses, deputy assistant secretary of defense for homeland defense integration, said he was aware of discussions to take more money from the Pentagon budget apart from the $3.83 billion announced Thursday but that no decisions had been made.
The latest diversion of Pentagon funds, Salesses said, comes in response to a request the Department of Homeland Security made in mid-January. The $3.83 billion, he said, will pay for the construction of 177 miles of 30-foot bollard-style barriers on federally controlled land in six border sectors: San Diego, El Centro, Yuma, Tucson, El Paso and Del Rio. It will be contracted through the Army Corps of Engineers.
“It’s clear that we are meeting the requirements that have been identified by the president to accelerate and build the border barrier as quickly and as effectively as we can,” Salesses said.
Critics from both parties say Trump’s move over the past two years to take what now amounts to nearly $10 billion appropriated by Congress for the military has set a dangerous precedent in executive overreach, which could open the door for a future administration to defy Congress’s constitutionally mandated power of the purse. Trump regularly said on the campaign trail that Mexico would pay for his border wall.
“Congress has repeatedly voted in a bipartisan way to refuse funding the President’s wasteful, ineffective border wall,” Senate Minority Leader Charles E. Schumer (D-N.Y.) and House Speaker Nancy Pelosi (D-Calif.) said in a statement. “This latest effort to steal Congressionally-appropriated military funding undermines our national security and the separation of powers enshrined in our Constitution.”
Even Republicans who support increased border security have bristled at the questionable way Trump is deriving funds to see through one of his primary campaign promises.
Rep. Mac Thornberry (R-Tex.), the top Republican on the House Armed Services Committee, criticized Thursday’s move, emphasizing that Congress has the constitutional responsibility to determine how defense dollars are spent.
“The re-programming announced today is contrary to Congress’s constitutional authority, and I believe that it requires Congress to take action,” Thornberry said in a statement.
On Monday, the White House released its budget request for 2021, which included $2 billion in border wall funds, far less than what Trump is planning to take from defense funding.
The Trump administration is making the moves without approval from Congress, which under the U.S. Constitution is given the power to appropriate federal funds. Some U.S. states and advocacy groups are challenging the legality of the administration’s plans in federal courts.
While lower courts have temporarily halted the use of military funds, the Supreme Court and a federal appeals court in a separate case have allowed the Trump administration to go forward with the transfers — and barrier construction — while litigation is pending.
Last year, Trump bypassed Congress to take $6.1 billion from the Pentagon budget for the border project.
The American Civil Liberties Union, which is challenging the legality of the administration’s actions on border barrier funding in court, said it would move to stop the latest transfer of military funds.
“Multiple courts have ruled that it is illegal for Trump to pillage military funds for his xenophobic border wall,” said Dror Ladin, an attorney with the ACLU’s National Security Project. “Not one court has given his unlawful power grab the stamp of approval. We’ll be back in court to block these additional, unauthorized transfers.”
To take the funding, Trump used the counternarcotics law, as well as another little-known statute in U.S. code that allows the Pentagon, in the event of a national emergency requiring the deployment of troops, to divert military construction funds to pay for infrastructure needed by those forces.
About 5,000 troops — including National Guard and active-duty forces — remain deployed to the U.S. southern border. The Joint Chiefs of Staff determined last year that the construction of border barriers would support those troops — the active-duty component of which is deployed under a national emergency Trump declared early last year.
The Pentagon suggested the $3.6 billion in military construction funds it diverted to border barriers last year would be “backfilled” by Congress, potentially leading to no delays in the projects that were defunded. But the money wasn’t replenished, so the projects are de facto canceled until they receive funding.
The White House is expected to take a similar amount again this year from military construction funds, but Pentagon officials have not said which projects Congress has approved would be defunded to free up that money. The Pentagon’s civil works budget could also be diverted to pay for barrier construction.
Salesses said he wasn’t aware of plans to tap the Pentagon’s civil works budget. He declined to comment on discussions about taking money from the military construction budget again this year.
Salesses said the Pentagon has been given the authority by Congress to move around $6 billion within its budget this year under a process known as reprogramming.
The defense secretary must determine the money is going to a higher-priority matter than what it was appropriated for initially, and in this case Defense Secretary Mark T. Esper did so, Salesses said.
Salesses said at the instruction of the president, the administration is progressing rapidly toward fulfilling DHS’s plan to build 722 miles of border barriers over 10 years at a cost of approximately $18 billion.
“This will obviously meet a lot of those goals that were set,” Salesses said, citing “significant national security challenges on the southwest border of the United States.”
The top Pentagon official said he didn’t anticipate receiving more requests from DHS for funding from the Defense Department budget for the border barrier next year, as a result of the accelerated progress already made.
Projects whose funding was pulled last year include the restoration of U.S. military facilities destroyed by Hurricane Maria in Puerto Rico, installations the U.S. military said it would build in Europe to help deter Russia and schools on U.S. military bases in the United States and abroad.
In a letter to the Pentagon’s acting comptroller, Rep. Peter J. Visclosky (D-Ind.), chairman of the House subcommittee on defense appropriations, said his subcommittee rejected the Defense Department’s latest request to reallocate the funds.
The Pentagon has previously said that by law it doesn’t need approval from Congress to move funds when the amount is lower than the reprogramming cap. It does have a duty to inform Congress, as the Pentagon did Thursday.
In earlier administrations, Defense Department officials typically sought approval from leaders of the relevant congressional committees as a matter of course for large reallocations, even if the approval wasn’t technically required by law.
In his letter to the acting comptroller, Visclosky said that with its unilateral action, the Defense Department was continuing to breach “the historic and unprecedented comity” that has existed between his committee and the Pentagon.