{
  "id": "R45908",
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  "number": "R45908",
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      "id": 612205,
      "date": "2019-12-30",
      "retrieved": "2020-01-02T13:29:47.839993",
      "title": "Legal Authority to Repurpose Funds for Border Barrier Construction",
      "summary": "President Trump has prioritized the construction of border barriers along the U.S.-Mexico border. Over the course of negotiations for FY2019 appropriations, the Administration asked Congress to appropriate $5.7 billion to the Department of Homeland Security (DHS) for that purpose. When Congress appropriated $1.375 billion to DHS for border fencing, the President announced that his Administration would fund the construction of border barriers by repurposing funds appropriated to the Department of Defense (DOD) and transferring funds from the Department of the Treasury. The Administration asserted that these funding transfers were authorized by a combination of the following federal laws:\nNational Emergencies Act (NEA). The NEA establishes a framework for the President to declare national emergencies. The NEA does not itself appropriate or authorize the transfer of funds, but the declaration of a national emergency triggers other statutory provisions that allow certain executive departments to repurpose existing appropriations.\n10 U.S.C. \u00a7 2808. Section 2808 becomes available upon the President\u2019s declaration of a national emergency under the NEA. This provision authorizes the Secretary of Defense to use unobligated military construction funds for the construction of otherwise unauthorized military construction projects.\nSections 8005 and 9002 of the 2019 DOD Appropriations Act. Sections 8005 and 9002 of the 2019 DOD Appropriations Act authorize the transfer of up to $6 billion appropriated in that act for \u201cmilitary functions\u201d arising from \u201cunforeseen military requirements.\u201d Funds may be transferred under these authorities only for \u201cunforeseen military requirements\u201d where the item for which funds will be transferred \u201chas [not] been denied by the Congress.\u201d\n10 U.S.C. \u00a7 284. The 2019 DOD Appropriations Act also appropriated funds to a Drug Interdiction Account. Pursuant to 10 U.S.C. \u00a7 284, money in this fund may be spent by DOD in support of other agencies\u2019 counterdrug activities, including by constructing \u201croads and fencing . . . to block drug smuggling corridors across international borders of the United States.\u201d The Trump Administration proposed to use Sections 8005 and 9002 of the 2019 DOD Appropriations Act to transfer additional funds into the Drug Interdiction Account, which would then be used to construct border barriers.\n31 U.S.C. \u00a7 9705. This provision establishes a Treasury Forfeiture Fund (TFF) in the Department of the Treasury and authorizes the Secretary of the Treasury to make payments from unobligated sums in the TFF to federal, state, and local law enforcement agencies for various law enforcement purposes.\nSeveral plaintiffs filed lawsuits in federal courts in California, the District of Columbia, and Texas to prevent the Administration from using these authorities to repurpose appropriations for border barrier construction, arguing that none of the Administration\u2019s funding initiatives were authorized by Congress. Some plaintiffs also argued that the construction of border barriers was subject to the environmental assessment requirements of the National Environmental Policy Act (NEPA).\nThough a federal court in California initially entered an injunction prohibiting the Trump Administration from using the funds to initiate construction of border fencing, the U.S. Supreme Court ultimately stayed that injunction. The California federal district court\u2019s injunction would have prohibited the Administration from using Sections 8005 and 9002 to transfer funds for border barrier construction. The court did not rule on the lawfulness of the Administration\u2019s other proposed funding sources, though it did determine that waivers issued by DHS under Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act rendered NEPA inapplicable to the proposed border projects. But following the Supreme Court\u2019s stay of the district court\u2019s injunction, DOD was able to use funds transferred under Sections 8005 and 9002 for barrier construction purposes while litigation in the case continues. A second federal district court in Texas has enjoined the use of Section 2808 for border barrier construction purposes. A third lawsuit challenging the Trump Administration\u2019s funding initiatives is ongoing in the District of Columbia, though that court has not ruled on the merits.\nMeanwhile, both houses of Congress have continued to move through the annual appropriations process. Although the House of Representatives initially passed a version of the DOD Appropriations Act for FY2020 that would have expressly prohibited the use of funds for the construction of border barriers, these limitations were not included as part of the Consolidated Appropriations Act, 2020 (which included DOD appropriations and $1.375 billion for construction of a barrier system along the southwest border), or the FY2020 National Defense Authorization Act as they were passed by both chambers of Congress and signed into law.",
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    {
      "source": "EveryCRSReport.com",
      "id": 605895,
      "date": "2019-10-02",
      "retrieved": "2019-10-10T22:23:32.945414",
      "title": "Legal Authority to Repurpose Funds for Border Barrier Construction",
      "summary": "President Trump has prioritized the construction of border barriers along the U.S.-Mexico border. Over the course of negotiations for FY2019 appropriations, the Administration asked Congress to appropriate $5.7 billion to the Department of Homeland Security (DHS) for that purpose. When Congress appropriated $1.375 billion to DHS for border fencing, the President announced that his Administration would fund the construction of border barriers by repurposing funds appropriated to the Department of Defense (DOD) and transferring funds from the Department of the Treasury. The Administration asserted that these funding transfers were authorized by a combination of the following federal laws:\nNational Emergencies Act (NEA). The NEA establishes a framework for the President to declare national emergencies. The NEA does not itself appropriate or authorize the transfer of funds, but the declaration of a national emergency triggers other statutory provisions that allow certain executive departments to repurpose existing appropriations.\n10 U.S.C. \u00a7 2808. Section 2808 becomes available upon the President\u2019s declaration of a national emergency under the NEA. This provision authorizes the Secretary of Defense to use unobligated military construction funds for the construction of otherwise unauthorized military construction projects.\nSections 8005 and 9002 of the 2019 DOD Appropriations Act. Sections 8005 and 9002 of the 2019 DOD Appropriations Act authorize the transfer of up to $6 billion appropriated in that act for \u201cmilitary functions\u201d arising from \u201cunforeseen military requirements.\u201d Funds may be transferred under these authorities only for \u201cunforeseen military requirements\u201d where the item for which funds will be transferred \u201chas [not] been denied by the Congress.\u201d\n10 U.S.C. \u00a7 284. The 2019 DOD Appropriations Act also appropriated funds to a Drug Interdiction Account. Pursuant to 10 U.S.C. \u00a7 284, money in this fund may be spent by DOD in support of other agencies\u2019 counterdrug activities, including by constructing \u201croads and fencing . . . to block drug smuggling corridors across international borders of the United States.\u201d The Trump Administration proposed to use Sections 8005 and 9002 of the 2019 DOD Appropriations Act to transfer additional funds into the Drug Interdiction Account, which would then be used to construct border barriers.\n31 U.S.C. \u00a7 9705. This provision establishes a Treasury Forfeiture Fund (TFF) in the Department of the Treasury and authorizes the Secretary of the Treasury to make payments from unobligated sums in the TFF to federal, state, and local law enforcement agencies for various law enforcement purposes.\nSeveral plaintiffs filed lawsuits in federal courts in California, the District of Columbia, and Texas to prevent the Administration from using these authorities to repurpose appropriations for border barrier construction, arguing that none of the Administration\u2019s funding initiatives were authorized by Congress. Some plaintiffs also argued that the construction of border barriers was subject to the environmental assessment requirements of the National Environmental Policy Act (NEPA).\nThough a federal court in California initially entered an injunction prohibiting the Trump Administration from using the funds to initiate construction of border fencing, the U.S. Supreme Court ultimately stayed that injunction. The California federal district court\u2019s injunction would have prohibited the Administration from using Sections 8005 and 9002 to transfer funds for border barrier construction. The court did not rule on the lawfulness of the Administration\u2019s other proposed funding sources, though it did determine that waivers issued by DHS under Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act rendered NEPA inapplicable to the proposed border projects. But following the Supreme Court\u2019s stay of the district court\u2019s injunction, DOD was able to use funds transferred under Sections 8005 and 9002 for barrier construction purposes while litigation in the case continues. Other lawsuits challenging the Trump Administration\u2019s funding initiatives are ongoing in federal courts in the District of Columbia and Texas, though neither court has ruled on the merits of the Administration\u2019s initiatives.\nMeanwhile, both houses of Congress have continued to move through the annual appropriations process. The House of Representatives has passed its version of the DOD Appropriations Act for FY2020 and is considering the National Defense Authorization Act (NDAA) for FY2020. The House version of the FY2020 Defense Appropriations Act prohibits the use of funds for the construction of border barriers, as does the House committee version of the NDAA. The Senate has also passed its version of the NDAA for FY2020, which does not include such a prohibition.",
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    {
      "source": "EveryCRSReport.com",
      "id": 604874,
      "date": "2019-09-10",
      "retrieved": "2019-09-16T22:07:18.972213",
      "title": "Legal Authority to Repurpose Funds for Border Barrier Construction",
      "summary": "President Trump has prioritized the construction of border barriers along the U.S.-Mexico border. Over the course of negotiations for FY2019 appropriations, the Administration asked Congress to appropriate $5.7 billion to the Department of Homeland Security (DHS) for that purpose. When Congress appropriated $1.375 billion to DHS for border fencing, the President announced that his Administration would fund the construction of border barriers by repurposing funds appropriated to the Department of Defense (DOD) and transferring funds from the Department of the Treasury. The Administration asserted that these funding transfers were authorized by a combination of the following federal laws:\nNational Emergencies Act (NEA). The NEA establishes a framework for the President to declare national emergencies. The NEA does not itself appropriate or authorize the transfer of funds, but the declaration of a national emergency triggers other statutory provisions that allow certain executive departments to repurpose existing appropriations.\n10 U.S.C. \u00a7 2808. Section 2808 becomes available upon the President\u2019s declaration of a national emergency under the NEA. This provision authorizes the Secretary of Defense to use unobligated military construction funds for the construction of otherwise unauthorized military construction projects.\nSections 8005 and 9002 of the 2019 DOD Appropriations Act. Sections 8005 and 9002 of the 2019 DOD Appropriations Act authorize the transfer of up to $6 billion appropriated in that act for \u201cmilitary functions\u201d arising from \u201cunforeseen military requirements.\u201d Funds may be transferred under these authorities only for \u201cunforeseen military requirements\u201d where the item for which funds will be transferred \u201chas [not] been denied by the Congress.\u201d\n10 U.S.C. \u00a7 284. The 2019 DOD Appropriations Act also appropriated funds to a Drug Interdiction Account. Pursuant to 10 U.S.C. \u00a7 284, money in this fund may be spent by DOD in support of other agencies\u2019 counterdrug activities, including by constructing \u201croads and fencing . . . to block drug smuggling corridors across international borders of the United States.\u201d The Trump Administration proposed to use Sections 8005 and 9002 of the 2019 DOD Appropriations Act to transfer additional funds into the Drug Interdiction Account, which would then be used to construct border barriers.\n31 U.S.C. \u00a7 9705. This provision establishes a Treasury Forfeiture Fund (TFF) in the Department of the Treasury and authorizes the Secretary of the Treasury to make payments from unobligated sums in the TFF to federal, state, and local law enforcement agencies for various law enforcement purposes.\nSeveral plaintiffs filed lawsuits in federal courts in California, the District of Columbia, and Texas to prevent the Administration from using these authorities to repurpose appropriations for border barrier construction, arguing that none of the Administration\u2019s funding initiatives were authorized by Congress. Some of these plaintiffs also argued that the construction of border barriers was subject to the environmental assessment requirements of the National Environmental Policy Act (NEPA).\nThough a federal court in California initially entered an injunction prohibiting the Trump Administration from using the funds to initiate construction of border fencing, the U.S. Supreme Court ultimately stayed that injunction. The California federal district court\u2019s injunction would have prohibited the Administration from using Sections 8005 and 9002 to transfer funds for border barrier construction. The court did not rule on the lawfulness of the Administration\u2019s other proposed funding sources, though it did determine that waivers issued by DHS under Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act rendered NEPA inapplicable to the proposed border projects. But following the Supreme Court\u2019s stay of the district court\u2019s injunction, DOD was able to use funds transferred under Sections 8005 and 9002 for barrier construction purposes while litigation in the case continues. Other lawsuits challenging the Trump Administration\u2019s funding initiatives are ongoing in federal courts in the District of Columbia and Texas, though neither court has ruled on the merits of the Administration\u2019s initiatives.\nMeanwhile, both houses of Congress have continued to move through the annual appropriations process. The House of Representatives has passed its version of the DOD Appropriations Act for FY2020 and is considering the National Defense Authorization Act (NDAA) for FY2020. The House version of the FY2020 Defense Appropriations Act prohibits the use of funds for the construction of border barriers, as does the House committee version of the NDAA. The Senate has also passed its version of the NDAA for FY2020, which does not include such a prohibition.",
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  "topics": [
    "Appropriations",
    "Environmental Policy",
    "Foreign Affairs",
    "National Defense"
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}