By Niv Elis and Cristina Marcos, The Hill–
Democrats face politically fraught options in opposing President Trump’s move to divert $3.6 billion in military funds to build 175 miles of his border wall.
The legislative responses available to Democrats are few, given that the courts have largely ruled in the administration’s favor when it comes emergency powers and the transfer of Pentagon funds. Pressing the issue runs the risk of derailing government funding legislation that Congress needs to pass by Oct. 1 to avert another shutdown.
While Democrats have vowed not to backfill accounts for the 127 military construction projects being tapped by the Pentagon for wall construction, standing firm could allow Trump to blame them for reduced funding for military projects.
And Democrats know that trying to add stringent language about the wall to any funding bills this month could increase the odds of another shutdown.
They’re wary of risking a shutdown over what’s likely to be a short-term stopgap measure, and would rather address the issue as part of a wider funding debate later this year.
“The goal of keeping the government open would outweigh a provision the White House would never agree to,” said a Democratic aide.
But Democrats have pushed back by ruling out a request by the Office of Management and Budget to free up border wall funds as part of any forthcoming stopgap.
That prompted a swift rebuke from the White House on Wednesday.
“After more than a year of denying there was a crisis at the border, Democrats have now decided it’s good politics to refuse critical resources for the same crisis they now admit is real,” said a senior administration official. “It’s time Congressional Democrats end the gimmicks, and do what’s right to end this crisis and protect the American border.”
The back-and-forth on Wednesday came a day after Defense Secretary Mark Esper announced the funding policy in a letter to congressional leaders.
“The funds being made available are associated only with deferred military construction projects that are not scheduled for award until fiscal year 2020 or later and do not include any family housing, barracks, or dormitory projects,” Esper wrote in a letter announcing the policy.
That did little to mollify Democrats, who also rejected Esper’s characterization that the reprogramming was nothing more than a delay of project funding.
Rep. Debbie Wasserman Schultz (D-Fla.), who chairs the House Appropriations Subcommittee on Military Construction and Veterans Affairs, made clear on Tuesday that she would not support backfilling the funds being diverted for the wall.
“I reminded his Administration today that I will not support this theft from our military and that down the road, the House of Representatives will not backfill any projects he steals from today,” she said.
But that position could prove tricky for Democrats since it would let Republicans argue that Democrats are willing to hold military projects hostage due to their opposition to the wall.
“We need to secure our border and protect our military; we can and should do both,” said Sen. Martha McSally (R-Ariz.), who is up for reelection next year.
McSally noted that the Senate passed its version of an annual defense policy bill that backfills money the White House diverted toward building a border wall.
The House and Senate are still working to iron out differences between their respective annual defense policy bills, known as the National Defense Authorization Act (NDAA), before the law expires at the end of the year.
The House-passed version includes a provision that would prevent the Trump administration from using Pentagon funds for a border wall, while the Senate bill goes in the other direction and calls for meeting the Trump administration’s request to backfill the $3.6 billion for military construction projects.
But before Congress gets around to making final spending decisions for fiscal year 2020, it will have to pass a stopgap measure by Oct. 1 to avert a shutdown. That deadline could also become a flashpoint.
A showdown over the wall in December prevented a similar stopgap measure from going through, resulting in a record 35-day partial government shutdown.
Another possible line of attack for Democrats could be a renewed attempt to overturn Trump’s emergency declaration, a move that would force a Senate vote and require Republicans in both chambers to go again on the record on the Trump administration bypassing Congress.
Trump in March vetoed Congress’s attempt to nix his declaration. But Democrats can force another a similar vote every six months, and that could create a dilemma for GOP lawmakers whose states or districts stand to lose out on military construction projects under the diversion of funds.
“Congress has been ceding far too much powers to the executive branch for decades and it is far past time for Congress to restore the proper balance of power between the three branches,” said Sen. Mike Lee (R), who along with fellow Utah GOP Sen. Mitt Romney raised concerns about $54 million worth of military construction projects in their state affected by the declaration.
Democrats also say they will rely on legal challenges to block the funds, arguing that Trump’s move usurps Congress’s power of the purse enshrined in the Constitution. But a lawsuit filed by House Democrats earlier this year was dismissed by a federal judge in Washington, who ruled in June that they lacked standing to bring the challenge.
That’s not stopping other entities from turning to the courts, even though previous challenges have fallen short. In July, the Supreme Court ruled that Trump could use $2.5 billion in military funds for the wall while litigation played out.
But on Tuesday, the American Civil Liberties Union (ACLU) said it would seek a court order to stop the Pentagon’s transfer of funds.
“The fact that the government sat on these so-called ’emergency funds’ for seven months further confirms that this is nothing but an unlawful power grab,” said Dror Ladin, staff attorney with the ACLU’s National Security Project. “We’ll be back in court very soon to block Trump’s latest effort to raid military funds for his xenophobic wall.”