DOD and Border Security—At What Price? By Mark F. Cancian

The Trump administration recently released its FY 2020 budget. In it, the administration proposes to continue DOD’s role in border security, a role that includes both construction and troop deployments. Because this is nontraditional and controversial, the funding mechanisms in both FY 2020 and FY 2019 (the current fiscal year) are complicated. This set of critical questions explains the different mechanisms the administration proposes to use.
 
Q1: What is in the FY 2020 DOD budget for border security?

A1: The budget contains $9.2 billion for “emergency” construction funds in the Army military construction account. There are three budget lines: $2 billion for remediation of hurricane damage to facilities (primarily at the Marine Corps base at Camp Lejeune, but also at other bases such as Tyndall Air Force Base in Florida), $3.6 billion for further construction of the wall on the Southwest border, and $3.6 billion to backfill FY 2019 construction projects that were canceled to fund the wall.

These are structured as “transfer funds”. Transfer funds do not identify specific projects but rather are appropriated as lump sums that DOD would transfer to other budget lines when the specific needs become clearer. They are structured this way in FY 2020 because the department does not yet know exactly which projects are needed.

Congress does not like transfer funds and often criticizes them as “slush funds” because it does not know where the money will ultimately go. It is, therefore, unlikely that Congress will approve them in their current form. Instead DOD will likely identify the specifics by the time the committees go into markup, so funding can be approved for individual projects.
 
Q2: Hurricane remediation and wall construction are clear. What is the backfill about?

A2: The backfill in FY 2020 would pay for the $3.6 billion of construction projects that are projected to be canceled in FY 2019.

Building a border wall has been one of President Trump’s signature issues, linked to a broader set of policies and attitudes on immigration. When Congress refused to give the president the full amount he requested in FY 2019, he declared a national emergency. One of the powers that a national emergency gives the president, 10 USC 2808, is the authority to use unobligated military construction funds for emergency construction. “Unobligated” means funds have been authorized and appropriated in previous years for specific projects, but DOD has not yet signed a binding contract.

In his February announcement, President Trump stated that he would get $8 billion for the wall: $1.375 billion in the FY 2019 budget bill, $3.6 billion from military construction, $2.4 billion from DOD counterdrug funds, and $600 million from a Treasury forfeiture fund.

Ironically, DOD has not yet identified which FY 2019 construction projects will be canceled. In other words, the president took the step of declaring a national emergency and has endured significant political criticism as a result, but he has not yet taken advantage of the authorities the declaration gave him.
 
Q3: Why three separate accounts?

A3: In theory, there could have been just one transfer fund, but instead there are three. There is no detail in the budget documents released to date explaining why this is the case. Briefers at DOD’s budget press conference sidestepped questions. The Army deferred to the Office of the Secretary of Defense. The Office of the Secretary of Defense deferred to the briefer for the Office of Management and Budget, who was not present.

One can surmise that there are three separate budget lines because the purposes are different, and congressional reactions are likely to be different. Hurricane remediation will probably gather broad support since the need is real and nonpolitical. The backfill account would fund construction projects that the Congress previously approved and that are, presumedly, still service priorities. Although many members will likely complain about funding these projects “twice,” DOD will argue that it needs the projects and that failure to backfill will only hurt military operations while having no effect on wall construction. The backfill proposal therefore has a fair chance of being approved.

The $3.6B for wall construction will face stiff congressional opposition because that activity is so controversial. What is unclear is why this money is in the Department of Defense at all, since the FY 2020 budget also requests $5 billion in the Department of Homeland Security budget for wall construction.
 
Q4: Why is the money in an Army account if it is going to fund projects in all the services?

A4: Because the administration proposes a transfer fund, the money could be sent anywhere in DOD, including to other services. Putting it in one place now simplifies budgeting but also indicates the uncertainty about future use.
 

Q5: What does the “emergency” designation mean?

A5: The emergency designation means that the funds will not be restricted by the Budget Control Act caps, just like the war funding, called Overseas Contingency Operations (OCO). Thus, DOD does not need to displace core warfighting activities to fund these activities. The account is likely separate from the OCO because it is for a different purpose.

The caps play an important role in the administration’s FY 2020 budget because both defense and domestic spending are requested at the budget caps (sometimes known as “sequestration levels”). DOD’s total resources are protected because there is a large increase in OCO (from $69 billion in FY 2019 to $163 billion in FY 2020), but domestic agencies are not protected and thus would be cut deeply. Cutting domestic funding deeply while increasing defense sets up a confrontation with the Congress that the administration has lost the last two years but apparently intends to attempt again.
 
Q6: What is the role of Congress?

A6: These accounts are budgeted and approved in the same way as accounts in the base budget, so Congress will have an opportunity to debate and vote on them.
 
Q7: What about the counterdrug funds being diverted to fund the wall?

A7: The Trump announcement included $2.4 billion in FY 2019 to come from counterdrug funds. DOD has an appropriation “Drug Interdiction and Counterdrug Activities, Defense,” which it uses for two types of activities. The first is detecting and interdicting drug trafficking into the United States, and the second is sharing information on illegal drugs with U.S. and foreign government agencies. The administration proposes to use this authority (10 USC 284) for construction of a border wall and, indeed, section 284(b)7 does provide for the construction of “roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States”.

The counterdrug appropriation was established in 1989, so it has been around for a long time. Every year, the Congress typically appropriates about $900 million, usually having added some funds to the DOD request because of the state connection.

This fund supports many long-standing programs. About one-third of the counterdrug funds go to the politically powerful National Guard for state programs, for example, school education. Unlike military construction projects whose impact would be felt long-term, the impact of these cuts would be felt almost immediately.

This account does not contain $2.4 billion of unspent funds but probably something closer to half of the annual appropriation, or about $450 million. The administration plans to move other funds into this account to use the account’s authority for building barriers. Such large movements of funds from one account to another are conducted through “reprogramming actions”, which have customarily sought approval from the authorization and appropriation committees. However, this approval is not required by law, and the administration will apparently do the reprogrammings without congressional approval. This would be a venue for additional conflicts between the administration and the Congress, and likely provoke legislation that restricts the president’s ability to do this in the future.

So far, the administration has not taken any steps to use counterdrug funds for border construction, and there is no money in the FY 2020 budget to backfill FY 2019 funds that are diverted.
 
Q8: Are there other DOD costs for the administration’s border security program?

A8: Yes, there are costs in FY 2019 for troop deployments to the border. DOD has deployed 2,300 National Guard troops and is building up to about 4,350 active-duty troops as a result of earlier administration actions to enhance border security.

The cost of this deployment was about $230 million through the end of January, according to figures provided by DOD. CSIS calculates that future costs will be about $52 million a month for the active duty troops and $26 million a month for the National Guard. Thus, total costs for FY 2019 will approach $850 million, which must be paid out of existing DOD funds. There were no funds in FY 2019 specifically designated for this purpose.

An Army spokesman stated that there was no money in the FY 2020 budget to continue these deployments into FY 2020. However, there has been no announcements from the White House or the Pentagon stating when deployments will end.
 
Q9: Do these deployments have a readiness cost?

A9: There is a debate about whether the deployments have a readiness cost. In the short-term, the answer is probably not. The Posse Comitatus Act prevents active-duty troops from conducting law enforcement activities, so they are limited to providing support functions like transportation, communications, intelligence, and minor construction like building barbed wire barriers. National Guard troops acting in a state role are not subject to Posse Comitatus, but, by policy, their role is also limited. DOD mostly sent units designed to perform these functions. This means that many units on the border are doing functions similar to their wartime mission. There is training value when these support units deploy from home base and perform these functions in an operational environment. At some point, however, these units need to do other training that can only be done on a military base, for example, weapons firing.
 
Q10: Are border security and wall construction legitimate military missions?

A10: There are two separate questions here: are the missions legal and are they wise?

The answer to the first is almost certainly yes, military missions like these are legal. DOD has provided humanitarian relief in foreign countries, medical support to fight Ebola, and rescued American citizens trapped in hurricanes, among many other non-warfighting missions. If these are legitimate, it is hard to argue the protection of the border is illegitimate. Further, troops have been sent to the southwest border for over 20 years, mostly for counterdrug missions but also to stop migrants, so there is a long precedent.

Wall construction using DOD funds appears to be allowed under various authorities (10 USC 2808 and 10 USC 284), although these are being contested in the courts.

Whether these are wise uses of DOD resources is a different question. Regardless of opinions on the short-term—opinions are sharply divided and go beyond the scope of this paper— in the long-term these border security missions properly belong in the Department of Homeland Security (DHS). DHS has statutory responsibility for the wider mission and agencies specifically designed for executing it. In the future, border security should be fully funded there. In the FY 2020 budget, the administration has, indeed, requested more resources for DHS in this area, including wall construction, additional law enforcement officers, more personnel for judicial processing, and more detention facilities.

Mark Cancian (Colonel, USMCR, ret.) is a senior adviser with the International Security Program at the Center for Strategic and International Studies in Washington, D.C.

Critical Questions are produced by the Center for Strategic and International Studies (CSIS), a private, tax-exempt institution focusing on international public policy issues. Its research is nonpartisan and nonproprietary. CSIS does not take specific policy positions. Accordingly, all views, positions, and conclusions expressed in this publication should be understood to be solely those of the author(s).

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