Politics

Trump Hedges on $5 Billion for Border Wall on Day of Meeting With Schumer, Pelosi

President hints at military construction of barrier, which could be problematic legally

(Bill Clark/CQ Roll Call)

Just before a scheduled meeting with Democratic leaders on border security funding, President Donald Trump appeared to soften his demand for $5 billion in construction funds for his southern border wall proposal.

in a series of tweets, the president sought to build a case that portions of fencing and levee wall already built or in the works on his watch have successfully increased border security to a degree, even without the money he wants. And in a subsequent tweet, Trump foreshadows “some important announcements” in his administration’s trade talks with China; if true, any positive headlines of those talks could be drowned out by an ugly partial government shutdown that Trump likely would be blamed for.

“Very productive conversations going on with China!” Trump tweeted. The two countries last week agreed to 90-day pause in hostilities before increased U.S. tariffs are imposed on Chinese imports, originally scheduled for Jan. 1.

Trump kicked off his Tuesday tweet-storm by arguing that the current patchwork of “newly built Walls, makeshift Walls & Fences, or Border Patrol Officers & Military” have successfully kept out the “large Caravans that WERE forming and heading to our Country... .” He goes on to note that federal agencies have “done a FANTASTIC job of securing our Southern Border.”

Border apprehensions have actually gone up in the past few months to a monthly total of around 400,000, after being at a low in 2017 not seen since the year 2000, at 310,000, according to recent DHS figures.

And while stressing that his proposed U.S.-Mexico border wall would be a “far easier & less expensive solution,” Trump acknowledges that Democrats may not give him the needed votes for the $5 billion he wants in fiscal 2019 — in which case “the Military will build the remaining sections of the Wall.”

It’s not clear whether this could be done without congressional approval.

Such a diversion of funds would normally come through a “reprogramming” request to shift money away from purposes originally intended in appropriations acts; that would need the assent of the relevant Appropriations subcommittees in both chambers and Armed Services committees. A House Democratic aide said such a reprogramming could only occur in military construction accounts, not other Pentagon funds such as for operations and maintenance.

In April, Senate Defense Appropriations ranking member Richard J. Durbin, D-Ill., and Armed Services ranking member Jack Reed, D-R.I., wrote to Defense Secretary James Mattis, saying that the Pentagon unlikely has the legal authority to shift military funds to border construction, even in a reprogramming request.

Feed and Forage

It’s possible, however, that Trump could invoke a 1986 law to repurpose unspent Army Corps of Engineers construction funds upon declaring a national emergency “that requires or may require use of the Armed Forces.” There’s also the 1861 Feed and Forage Act, which enables the Pentagon to spend money in the absence of appropriations; the original statute says funds can only be obligated for “clothing, subsistence, forage, fuel, quarters, transportation, or medical and hospital supplies,” though the law has been invoked more broadly on occasion.

In any case, Trump seems to be giving himself an “out” from his hard-line position on border wall funds in year-end spending talks, which if unresolved by Dec. 21 could lead to a partial shutdown when the current continuing resolution expires.

He’s scheduled to talk the matter over Tuesday morning in the Oval Office with House Minority Leader Nancy Pelosi, D-Calif., and Senate Minority Leader Charles E. Schumer, D-N.Y., who issued a preemptive statement Monday night saying they have no intention of bending to Trump’s demand.

“Our country cannot afford a Trump Shutdown, especially at this time of economic uncertainty,” Schumer and Pelosi said. “This holiday season, the president knows full well that his wall proposal does not have the votes to pass the House and Senate, and should not be an obstacle to a bipartisan agreement.”

Democrats say they won’t accept any more than $1.6 billion for border “fencing,” as included in the bipartisan Senate version of the fiscal 2019 Homeland Security spending bill. It’s also the figure in Trump’s initial budget request submitted in February, before bulking it up at first informally through word of mouth and then through an “anomaly” request to lawmakers. That’s up from $1.375 billion in the fiscal 2018 enacted bill, which is Pelosi’s preferred starting point — the number that would likely be part of a yearlong continuing resolution.

Democrats also want to preserve restrictions from last year’s spending bill, including a prohibition on building wall portions using anything but “operationally effective designs” approved as of May 2017, “such as currently deployed steel bollard designs, that prioritize agent safety.” The fiscal 2018 law also said barriers can’t be built in the Santa Ana National Wildlife Refuge.

House Speaker Paul D. Ryan, R-Wis., told reporters Tuesday that the ultimate outcome will be driven by bipartisan support in the Senate.

“We want to pass what the Senate can pass and the president supports, but as you know this takes 60 votes,” Ryan said.

The DHS appropriations bill is one of seven fiscal 2019 spending measures that are yet to be signed into law, comprising about 25 percent of this year’s $1.244 trillion discretionary funding allotment under February’s budget deal (PL 115-123).

Jennifer Shutt, David Lerman and John M. Donnelly contributed to this report.

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