President Trump’s plan to divert billions of dollars toward the construction of a border wall has already sparked a raft of legal challenges. As details of the plan are released, the administration will face a new, potentially even larger challenge: placating members of Congress intent upon protecting military construction projects in their home states.
“If he acts, then there’ll be a reaction,” said Rep. John Garamendi, who chairs the House Armed Services Readiness Subcommittee. “And I can assure you that every project has its supporters here in Congress. We’ll see what he does.”
Unlike with most other appropriations, Congress earmarks military construction money for specific projects, such as bases, medical centers, and aircraft hangars. The money is spent out over five-year periods, which is meant to allow the military to undertake large projects that are impossible to complete in a single fiscal year.
Following the emergency declaration, Trump invoked a statute that allows the Defense secretary to “undertake military construction projects ... not otherwise authorized by law that are necessary to support such use of the armed forces.” Under the law, the president is able to reprogram “unobligated” funds that have not been promised to specific contractors.
“At any given time, you’re going to have a bulk of funds going back five years that have not yet been spent,” said Travis Sharp, a researcher at the Center for Strategic and Budgetary Assessments. “They’ve been appropriated by Congress for specific programs, projects, and activities, but the Department of Defense has not yet entered into the contracts that would then obligate those appropriated funds to actual outlays.”
For 2019, Congress authorized approximately $11.2 billion for military construction, a large percentage of which is currently unobligated. According to a Pentagon report delivered to Congress last November, military construction accounts from the fiscal years 2014 through 2018 held an additional $13 billion in unobligated funds.
The president declared a national emergency in order to dip into these funds—diverting up to $3.6 billion for the wall, according to Treasury Secretary Steven Mnuchin. The White House said money will be pulled from the Pentagon’s counter-drug fund and the Treasury Department’s asset-forfeiture pots before cutting from military construction projects.
Leadership on the defense committees have spoken out against the plan to use military construction money.
House Armed Services Committee Chair Adam Smith released a statement calling the plan to reprogram Pentagon funds “utterly disrespectful” to military families. The former chair, Rep. Mac Thornberry, said in his own statement that “military infrastructure was one of the accounts most deprived during the Obama-era defense cuts.”
Before the announcement, Senate Armed Services Chairman James Inhofe warned that Trump should “leave [military construction] alone.”
“Members really care about this stuff,” said Sam Berger, an Obama-era Office of Management and Budget official now at the Center for American Progress. “It’s important for their districts—it brings in money, people—and so they’re very particular about how military construction funding is used.”
It’s unclear exactly where the Pentagon will make the cuts. Senior administration officials have said they would look at “lower priority” projects that could be deferred for a few months, or until next year. In the next authorization bill, Congress may be asked to backfill the accounts that were sacrificed to pay for the wall.
“I never got the impression that there’s a lot of fat in that budget,” said Brian McKeon, a former Defense and White House official now at the Penn Biden Center for Diplomacy. “And it’s all things that are basic to operating a base, whether it’s a hangar, or weapons storage, or fixing a runway, or the things that support the base community like schools and health facilities.”
Congressional staffers have expressed concern that political appointees involved in the budgeting process might target construction projects in states that will not affect the president’s reelection chances. But Mark Cancian, a former OMB official now at Center for Strategic and International Studies, said he does not expect politics to play a role.
“Having talked to my former colleagues in the [Office of Management and Budget], they told me that there was $5 [billion] to $10 billion possibly being set aside for the wall,” Cancian said. “I inferred that some of that would be backfill for projects that were deferred.”
Certain projects will likely be spared. Just last week, the Senate Armed Services Committee held a hearing on deteriorating conditions at military housing facilities. Acting Defense Secretary Patrick Shanahan implied on Saturday that he would not cut funding for those projects, which account for approximately 15 percent of the 2019 military construction budget.
Other high-profile projects, like those relating to missile defense, will also likely be left alone, said experts.
“The missile field at Fort Greely and the discrimination radar at Clear Air Force Base in Alaska—those are the two top priorities of the missile-defense program right now … and they’ve got to keep those on track,” McKeon said. “Those are untouchable.”
“The things at the top would have been health and safety,” Cancian said. “Medical facilities, construction—that’s replacing things that are unsafe, those that are required to meet new environmental standards.”
For now, Shanahan has not provided any details.
“We always anticipated that this will create a lot of attention, and since monies potentially can be redirected, it's going to—you can imagine the concern this generates,” Shanahan told reporters Saturday.
Shanahan will soon have to verify that the construction of the wall supports the deployment of the troops, which experts say is potentially the weakest part of the Trump administration’s legal case. The statute requires that the project to which the president diverts funds must be constructed to “support” the military.
“The deployment of the armed forces here is in support of building the wall and not vice versa,” said Elizabeth Goitein, a scholar at the Brennan Center for Justice and a leading expert on the national emergency authorities. Trump’s recent rhetoric regarding “invasions” at the border, and his repeated characterization of the situation as a national security crisis, are meant to back up this legal framework, Goitein said.
“It’s pretty clear that what this statute is intended for is when troops have to be deployed in a national emergency very quickly and there’s no infrastructure to support that deployment. … And the president proposing to use it very, very differently, in a situation where not only is there no need to use the armed forces at all, but certainly building the wall does not qualify as military construction in support of the deployment,” she said.