{ "id": "IN11210", "type": "CRS Insight", "typeId": "INSIGHTS", "number": "IN11210", "active": true, "source": "EveryCRSReport.com", "versions": [ { "source": "EveryCRSReport.com", "id": 614626, "date": "2020-01-16", "retrieved": "2020-01-24T23:06:44.880579", "title": "Possible Use of FY2020 Defense Funds for Border Barrier Construction: Context and Questions", "summary": "On January 13, 2020, the Washington Post reported that the Trump Administration plans to reallocate $7.2 billion in Department of Defense (DOD) appropriations to construct barriers along the U.S.-Mexico border. Of this amount, $3.7 billion would reportedly come from deferring congressionally approved military construction (MILCON) projects. An additional $3.5 billion would be redirected through DOD\u2019s Drug Interdiction and Counter-Drug Activities account (hereinafter counter-drug transfer account). If the Administration were to carry out the actions as described by the Washington Post, DOD would be using the same authorities it exercised in FY2019, when it transferred $6.1 billion in defense funds for border barriers. In this case, FY2019 and FY2020 defense funding for border barriers would total $13.3 billion.\nBackground\nOn February 15, 2019, the Trump Administration announced plans for redirecting up to $6.1 billion from existing FY2019 DOD programs and projects to border wall construction, using a complex mix of emergency- and nonemergency-related authorities. These actions were challenged in litigation that remains ongoing. \nDuring FY2020 budget deliberations, Congress considered a number of legislative provisions that would have constrained the Administration\u2019s use of similar authorities. These included provisions to\nreduce annual defense transfer thresholds, \nlimit DOD\u2019s emergency construction authority, and \nprohibit the use of defense funds for physical border barriers in general. \nIn late July 2019, congressional leadership announced they had come to an informal understanding, as part of a budget agreement that excluded \u201cpoison pills\u201d and limited changes to transfer funding levels and authorities from annual appropriations measures. \nUltimately, Congress refrained from including legislative language in the FY2020 appropriations and authorization acts that would have reduced transfer thresholds or prohibited the Administration from repeating the transfer actions it had undertaken in FY2019 to support border barrier construction.\nAt the same time, Congress declined to support the Administration\u2019s FY2020 budget request to provide an additional $7.2 billion in MILCON appropriations. Of this amount, $3.6 billion would have replenished military construction projects depleted by emergency transfers in FY2019 and $3.6 billion would have directly supported additional border barrier construction.\nFigure 1. Recent Border Barrier Funding Actions (Defense Only)\n/\nSource: CRS.\nAuthorities Used in Previous Transfers\nIn FY2019 the Administration redirected $6.1 billion from defense projects and programs using a combination of authorities (including 10 U.S.C. \u00a72808 and 10 U.S.C. \u00a7284) that it could again employ using FY2020 appropriations. See Figure 2. \nFigure 2. Comparison of Authorities Used in FY2019 to Transfer Defense Funds for Border Barrier Construction\n/\nSource: CRS graphic based on analysis of identified statutes.\nNotes: Emergency authority colored orange. Nonemergency colored blue. National emergencies may be terminated by Joint Resolution, subject to presidential veto. There are currently 34 national emergencies in effect. Drug smuggling corridors are not defined in law, but Customs and Border Protection considers the southern border to encompass in its entirety a series of drug smuggling corridors. Separate reprogramming authorities and processes are used for military construction appropriations.\n10 U.S.C. \u00a7284 Counterdrug Transfers for Border Barriers in FY2019\nIn FY2019, DOD reprogrammed $2.5 billion from a variety of nondrug defense programs into the counter-drug transfer account and then out to the U.S. Army Corps of Engineers (USACE) for border barrier construction.\nThe Administration relied on two authorities to reprogram funds into the counter-drug transfer account: the General Transfer Authority (for base appropriations) and the Special Transfer Authority (for overseas contingency operations, or OCO, appropriations). In turn, funds in the counter-drug transfer account may be used for a variety of counternarcotics activities, including those pursuant to 10 U.S.C. \u00a7284.\nDOD used this combination of reprogramming and transfer actions twice in 2019: first in March ($1 billion) and again in May ($1.5 billion). See Figure 3.\nFigure 3.How DOD Reprogrammed FY2019 Defense Program Savings\n/\nSource: Under Secretary of Defense (Comptroller), Reprogramming Action FY2019-01 RA (March 25, 2019) and FY2019-02 RA (May 9, 2019).\n10 U.S.C. \u00a72808 Emergency MILCON Deferrals \nWhen the President declares a national emergency requiring the use of the Armed Forces and invokes the emergency authority under 10 U.S.C. \u00a72808, the Secretary of Defense is permitted to undertake construction projects \u201cnot otherwise authorized by law that are necessary to support such use of the armed forces.\u201d Such construction is funded using unobligated MILCON appropriations\u2014effectively deferring previously approved MILCON projects until Congress provides replenishing appropriations. \nDOD developed the following criteria to identify projects with unobligated balances it would not consider deferring under 10 U.S.C. \u00a72808:\nNo military housing projects.\nNo projects that were already awarded a contract.\nNo projects with projected award dates before FY2020.\nThe Department\u2019s final selection indefinitely deferred 127 previously authorized MILCON projects. Figure 4 below shows the distribution by location.\nFigure 4. MILCON Projects Deferred in FY2019, Pursuant to 10 U.S.C. \u00a72808 ($3.6 billion)\nPercentage of appropriations by location\n/\nSource: CRS analysis of DOD September 3, 2019, notification to congressional defense committees on projects to be deferred by the use of 10 U.S.C. \u00a72808.\nNotes: Percentages represent amount by category. For example, projects deferred in Germany represent 25% (approximately $468 million) of the \u201cForeign Locations\u201d category total of $1.8 billion. Similarly, projects deferred in Puerto Rico represent 59% (approximately $402 million) of the $687 million in the \u201cU.S.-Affiliated Locations\u201d category.\nIssues for Congress\nAre there plans to redirect defense funds to border barriers in FY2020? If so\nWhen were they developed? Why was Congress not informed of them during negotiations on the FY2020 funding bills in order to ensure defense funding patterns reflect Congressional priorities? \nWhat portion of FY2019 funds redirected for border barriers has been obligated?\nWill Congress consider limiting DOD\u2019s authority to redirect additional defense funds for border barrier construction? What happens if the emergency declaration is revoked? \nWill Congress replenish funds for any MILCON projects deferred pursuant to 10 U.S.C. \u00a72808?\nWhat criteria might DOD use to identify MILCON projects eligible for deferral under 10 U.S.C. \u00a72808 in FY2020?\nHow much are the estimated future costs to DOD for operating and maintaining completed barrier construction, and from which appropriation account will the funds be derived?\nHow might anticipated new transfers affect overall defense readiness?\nHow is DOD selecting border barrier projects to undertake? 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