Can the Pentagon Shut Down Donald Trump's National Emergency' Plan to Use Military Money for Border Wall?

Declaring a national emergency over immigration on Friday, President Donald Trump vowed to use $6 billion in Pentagon money, which had been designated for military construction and counterdrug activities, to build a border wall between the U.S. and Mexico.

Approximately $3.6 billion would come from the Department of Defense military construction account, while another $2.5 billion would be pulled from the Defense Department's drug interdiction program.

But according to the Defense Department, the president might not have the final word on whether military funds can be used for his long-promised border wall, despite his show of executive power.

That decision, it seems, rests in large part with Acting Secretary of Defense Patrick Shanahan, who acknowledged over the weekend that he did, in fact, have the authority to refuse Trump's request to redirect Defense Department funds for the construction of border barriers.

According to a Defense Department transcript of a press gaggle on Saturday, when asked by reporters whether he had the power to make such a refusal, Shanahan confirmed that he was "authorized" to decide on whether border barriers between the U.S. and Mexico were necessary. He said he would be working with the Department of Homeland Security to make that determination.

Shanahan said that Defense Departmnet officials had been preparing "for a number of weeks" for the possibility that a national emergency would be declared over immigration. "We've been laying out the process we would follow if a national emergency were declared and making sure everybody understands the statutes so that we could do things correctly and legally," Shanahan said.

What Is 10 U.S. Code Section 2808?

Specifically, the Defense Department appeared to have focused on Section 2808 of Title 10 of the United States Code.

On Friday, shortly after Trump announced his national emergency, the Defense Department put out a statement noting that the president had invoked sections 12302, 284(b)(7), and 2808 of Title 10, U.S. Code, requiring the "use of the armed forces to respond to this emergency through support to the Department of Homeland Security in its efforts to secure the southern border."

As the Defense Department noted, 10 U.S.C., Section 12302 (Activation of the Ready Reserve) "authorizes involuntary activation of the Ready Reserve, which includes members who, when mobilized, perform a federal mission at the direction of the secretary of defense."

10 U.S.C., Section 284(b)(7) (Counterdrug Support) "authorizes DoD to support the counterdrug activities of other federal agencies, including DHS, with the construction of roads, fences, and lighting to block drug smuggling corridors across international boundaries."

But the Defense Department said that Section 2808 "authorizes the secretary of defense to determine whether border barriers are necessary…to support the use of the armed forces."

Asked about the significance of Section 2808, Shanahan acknowledged that "the language itself is very simple. I think, in effect, it says, to support military operations, you have the discretion to utilize military construction funds and it's basically that broad."

While Section 2808 appears to make clear that Shanahan does have the authorization to curb Trump's use of Defense Department funds for the construction of border barriers, it is not clear whether the defense secretary plans to use it.

After a reporter summarized the defense secretary's comments, noting that he did not "have to" accept Trump's demand, Shanahan said: "For us, the determination would be made in coordination with the Department of Homeland Security."

Pushing further, the reporter said that Section 2802 "says you're authorized."

The defense secretary acknowledged, "I'm authorized. So, I'll be working in close support with the Department of Homeland Security."

"There's Been no Determinations by Me"

Shanahan said that he has yet to make any determination on whether he considered border barriers necessary to justify diverting Defense Department funds.

"There's been no determinations by me," he said, asserting that he planned to focus on making a decision on Sunday. "I just want to make a point of this. We are following the law, using the rules and we're not bending the rules, OK?"

He said a "mission analysis" was being undertaken by a joint staff of Department of Defense and Department of Homeland Security members who were acting as "the planners that come back and say: 'Here are the appropriate use of those resources, how many, where.'

"They have been doing, we call it mission analysis. If you were to step back in time and look at our interaction with the Department of Homeland Security, they've been tasking us to support them. I will go in and review that analysis now that the emergency has been declared. Based on that we can do an assessment of what would be appropriate," Shanahan said.

Asked whether that meant that he had yet to make a decision, Shanahan said: "This is what's extremely important because 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.

"So very deliberately we have not made any decisions. We've identified the steps we would take to make those decisions. This is the important part of that. We laid that out so we could do it quickly. We don't want to fumble through this process."

"When You say Trade-Off, It Really Is a Trade-Off"

If money is dedicated to Trump's border wall construction, Shanahan acknowledged that there would be trade-offs for the Defense Department.

"If I had a flowchart, it would basically start with mission analysis and then the service secretaries become involved and looking at—kind of looking at making some of those trade-offs," Shanahan said.

"What's been done to date is look at the sources of available funding. And then of those sources, how might you apply them? So for example, the money that could be reprogrammed for counterdrug is money that would have to be spent in this year," he said. "So you wouldn't want to work on a project where you couldn't spend it this year. Military construction funds in 2808 are five-year money. So there's part of the work that's been done now is understand what the sources are. The different sources have potentially different amounts."

"But all of this money has been assigned for other purposes, so it really then comes to what can—what are you going to trade off, because when you say trade-off, it really is a trade-off," he emphasized.

Shanahan said he had already been warned not to "jeopardize the projects that are underway," suggesting that military housing was one such project officials did not want to see put at risk.

"I should probably…just say this on the front end: We understand there are some priorities that won't be considered. Military housing; what's been interesting, I've received a number of letters. I've had lots of feedback. I appreciate we are trying to work through this very complicated situation.

"People remind us of—you know, these are real, live, very important projects; they're not just military housing. They're readiness, infrastructure," the defense secretary said.

What Happens Next?

According to Section 2808, "When a decision is made" on whether to "undertake military construction projects authorized by this section," the defense secretary will "notify in an electronic medium…the appropriate committees of Congress of the decision and of the estimated cost of the construction projects, including the cost of any real estate action pertaining to those construction projects."

By "appropriate committees of Congress," Section 2808 refers to congressional defense committees and, potentially, the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on the Intelligence of the Senate, if projects involve an intelligence component.

Shanahan said he believed Defense Department officials would use good judgment in determining what steps to take in response to Trump's national emergency declaration. "I think that's the factor here. We have smart people, and they'll use good judgment."

Ultimately, Shanahan made clear: "I'm not required to do anything."

President Donald Trump speaks during a Cabinet meeting on July 18, 2018, at the White House as then Deputy Secretary of Defense Patrick Shanahan sits beside him. Now acting secretary of defense, Shanahan could have the power to prevent Trump from using military funds to construct his long-promised border wall. Nicholas Kamm/AFP