Every American now knows the exhausting, cornerstone facts: An intransigent US House Speaker, flush with power and sure her socialist agenda is the future, refuses to fund anything like a protective barrier along the southwest border. A resolute President, behind the Resolute Desk, pledges to build a barrier that aims to create credible deterrence, diminish the gush of illegal narcotics and people, protecting America’s public health, public safety and territorial integrity.
To date, we have a standoff. The stalemate has played out as a purely political issue. President Trump requested just under six billion dollars for the “wall,” from a federal budget that tops out at four trillion dollars. Note, a trillion equals one million million, so the President asked for 0.000015 of the federal budget to start the protective barrier or wall. The House Speaker – and her left-lurching caucus – said “no.” The president then offered a half dozen compromises to get to “yes,” and still got “no.”
With the partial government shutdown lifted until February 15, the President has endorsed a bipartisan effort to get to “yes,”’ while others within the White House and Republican Party suggest either a second partial shut-down or declaring – as past presidents have for other reasons – a “national emergency,” effectively declaring the illegal drug and illegal immigration crises have reached a “tipping point.”
These three options – political compromise, partial shutdown, and national emergency – are all possible. But there is a fourth way, and it may at this time be worth considering. This fourth way requires that the issue become less political and more administrative. It would allow the socialist-beholden Democrats to claim they blocked this security effort, for whatever that gained them; it would more importantly allow the President to use executive power to resolve the issue, without a national emergency declaration.
What is this option? It is the marriage of two executive authorities. The first is found in the longstanding Title 10 authority, with support of the Defense Department, to build barriers along the southwest border to create counter-narcotics and counter-transnational deterrence.
The specific provision, Section 284, reads: “The purposes for which the [Defense] Secretary may provide support (a) for other departments of agencies of the Federal Government or State, local or tribal law enforcement agencies, are the following … [include] (7) construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.”
To be even more specific, there are eight DEA-identified regional drug transportation “corridors” and two of them, corridors E and F, cover the entire southwestern border. Thus, the initial authorization apparently exists already for creating such barriers, without statutory limit, if the resources were available – without needing an emergency or shutdown.
This moves us to the second question: Where does the President find roughly six billion dollars, if the US House Speaker and her caucus refuse to make resources available in pending appropriations for the Department of Homeland Security, which nests Customs and Border Patrol (CBP), Immigration and Customs Enforcement (ICE), and the US Coast Guard (USCG)?
The answer is in executive power of to transfer and reprogram resources. For anyone interested, these authorities are explained in the Congressional Research Service’s “Transfer and Reprogramming of Appropriations.” Notably, every president has used these powers, extensively.
In a nutshell, any President may, unless otherwise proscribed, meet unforeseen needs with “authority to shift funds from one appropriations or fund account to another.” In addition, departments and agencies are “permitted to shift funds from one purpose to another within an appropriations account.”
As a practical matter, using this transfer and reprogramming authority, de-conflicting it with any prior statutory limitations, the Bush Administration transferred enormous sums of money (billions) from departments like State to Defense, within departments and agencies, in some cases with congressional concurrence, in others by notification.
These transfers and reprogramming decisions could probably be executed in small amounts, sequentially or concurrently, made geographically and functionally specific, and aligned by interagency working group or task force to assure key parts of these two southwest corridors for drug trafficking are gradually covered by greater deterrent barriers.
Finally, there is an underutilized authority that is seldom even recognized, but genuinely valuable. As an Assistant Secretary of State under George W. Bush and Colin Powell, I used it to good effect. This is the authority to review money that was obligated (to prevent it from being rescinded), but never liquidated, that is never yet spent. There is actually a LOT of that money “parked” in what amount to escrow accounts, obligated to contractors for future use, and yet never spent.
Example: What I did as a newly-confirmed Assistant Secretary was find (in one bureau) $60 million that had not been liquidated, going back ten years. I then required that money be liquidated by Ambassadors within 48 hours for the purpose appropriated by Congress, or I would de-obligate it immediately, and put it against new requirements. The entire $60 million came back to taxpayers, and was applied against future requirements – reducing future costs. That could also be done to pay for the wall; just imagine how many bureaus and agencies reside in federal departments.
In short, there is a non-political way to begin work on the border wall. That could be executed if the other options fall short. Then we could start the hard work – of fighting socialism, resolving the wider illegal immigration and drug crises, and reaching agreements that will help early 2020 be smoother than 2019. Just an idea.