While a caravan of some 1,200 Central American migrants trek toward U.S. ports of entry, Congress continues to block President Trump’s efforts to build his long-promised wall along the southern border.
On page 269 of the 2,232 page spending bill that Congress introduced and passed in just under 48 hours last month, construction efforts along the border are limited to repairing the existing fence; building vehicle barriers (that don’t block pedestrians); constructing small portions of pedestrian fencing; and spending on unmanned aerial drones (which the Department of Homeland Security (DHS) has already deemed completely ineffective at border patrol). Congress also blatantly blocks using any of the $1.6 billion of border funding in the omnibus for the wall prototypes that Trump has been testing.
{mosads}So what, if anything, can Trump do to build his wall? Existing law provides three clear options.
The first is in Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), a law which Congress passed in 1996 and has subsequently amended several times. The law, codified here, gives DHS a clear mandate to construct reinforced fencing along at least 700 miles of the 1,933-mile land border with Mexico.
Specifically, IIRIRA requires barriers to be built in areas of “high illegal entry” to the United States, and grants the Secretary of Homeland Security the ability to waive “all legal requirements” that may impede this construction.
According to one expert analysis, “nothing in current statute would appear to bar DHS from installing hundreds of miles of additional physical barriers … even beyond the 700 miles required by law.”
So why hasn’t DHS simply done this already? It’s a matter of prioritization — and of funding. Though the law provides “such sums as may be necessary” to be “available until expended,” it is unclear if DHS has the funding capacity to take on such massive construction project. To do so would require a serious re-shuffling of current DHS spending priorities, one that would need to be initiated by the president.
This leads to Trump’s second option, which he has widely touted as “the military option.” In a recent tweet, he suggested that part of the $700 billion which Congress appropriated for the Department of Defense (DOD) be put toward a wall-building initiative.
Pundits have widely called this option into question, speculating that Congress would have to approve such “reprogramming” — that is, using funds for purposes other than those explicitly laid out in statute.
It is true that Congress jealously guards its power of the purse. It’s also true that the Antideficiency Act prohibits the use of federal funds for anything other than what Congress specifically appropriates.
However, the text of Congress’ recently passed spending bill does give the president flexibility for a very small amount of funding. When it comes to new military construction, in particular, Sec. 8074 expressly allows funding for those deemed “in the interest of national security” — a case that would not be difficult to make given that Mexico’s drug cartels are fueling the opioid trade and played a role in the murder of 29,000 Mexicans last year. Moreover, the section does not require that those funds be approved by Congress, it merely requires that the defense committees receive “prior notification” before they are used.
Finally, Trump could take a page out of President Obama’s playbook and fund the border wall using a trade vehicle — specifically the implementing legislation for a renegotiated North American Free Trade Agreement (NAFTA). The fast track law, which governs consideration of trade agreements, contains language allowing the president to include provisions which he deems “strictly necessary or appropriate” to the respective trade agreement. This is the same broad language President Obama used to add Trade Adjustment Assistance to the Korea free trade agreement. Similar provisions were included in the original NAFTA legislation.
Under this line of reasoning, Trump could include wall funding to a re-negotiated NAFTA, arguing that a secure border is critical to the enforcement of a cross-border trade agreement with Mexico. Even better? He could require Mexico to pay for it.
If the Republican Congress continues to block the president from accomplishing one of his signature campaign priorities, Trump should turn to other areas of existing law. The best option, however, would be for Republicans in Congress to do their job.
Trump won, in part, on his promises to reform the country’s immigration system — reforms that many Americans support. If Congress wants to have a say in what those reforms should be, they should actively participate in the debate. Obstinance is one policy choice, certainly, but it’s a far cry from actually governing. As Sen. John McCain (R-Ariz) said in 2010, “complete the danged fence.”
Rachel Bovard (@RachelBovard) is the senior director of policy for The Conservative Partnership, a nonprofit group headed by former South Carolina Sen. Jim DeMint aimed at promoting limited government.