Diverting $3.6 Billion in Military Construction Funds to Build the Border Wall After Congress Refused Funding
Tier 1Resolved2019-02-15 to 2020-12-11
Factual Summary
On February 15, 2019, President Donald Trump declared a national emergency at the southern border of the United States, invoking powers under the National Emergencies Act and 10 U.S.C. Section 2808 to redirect military construction funds to build a border wall that Congress had explicitly refused to fully fund. The declaration came after a 35-day government shutdown, the longest in American history, which ended on January 25, 2019, without Trump securing the $5.7 billion in border wall funding he had demanded. Congress subsequently passed an appropriations bill providing $1.375 billion for border barriers, far less than the amount Trump sought.
Defense Secretary Mark Esper approved the diversion of $3.6 billion from 127 military construction projects to fund 175 miles of border wall. The affected projects spanned both domestic and international military installations. Approximately half of the diverted funds came from projects within the United States, and half from projects at overseas bases.
The affected military construction projects included critical infrastructure for service members and their families. Among the most prominent was $95 million allocated for an elementary school for children of American military personnel in Okinawa, Japan. Other affected projects included military housing, training facilities, vehicle maintenance buildings, and hazardous materials warehouses at installations across multiple states and countries. The Government Accountability Office identified 11 projects that were deferred, meaning construction would not proceed until alternative funding was secured.
Congress voted on a bipartisan basis to terminate the national emergency declaration. Twelve Republican senators joined all Democratic senators to pass a resolution of disapproval. Trump vetoed the resolution on March 15, 2019, his first veto as president. Congress failed to override the veto. The Senate voted a second time in September 2019 to terminate the emergency, and Trump vetoed that resolution as well.
Multiple federal courts ruled on the legality of the fund diversion. On June 26, 2020, the U.S. Court of Appeals for the Ninth Circuit ruled that the diversion of $2.5 billion in military construction funds was unlawful, finding that the administration had exceeded its statutory authority. The court stated that the administration "did not have Congressional authorization to redirect military construction funds for the border wall construction." A separate ruling from the U.S. Court of Appeals for the Fifth Circuit initially allowed the spending to proceed. On December 11, 2020, a federal court ruled that Trump's use of emergency powers to divert $3.6 billion in military construction funds was unlawful.
After taking office in January 2021, President Biden terminated the national emergency declaration and issued a proclamation halting further border wall construction funded through the military construction diversion.
Primary Sources
1. Proclamation 9844, "Declaring a National Emergency Concerning the Southern Border of the United States," February 15, 2019
2. Department of Defense list of 127 military construction projects affected by the diversion, September 2019
3. Sierra Club v. Trump, No. 19-16102 (9th Cir. June 26, 2020), ruling the fund diversion unlawful
4. H.J. Res. 46, joint resolution to terminate the emergency declaration, vetoed March 15, 2019
5. Government Accountability Office analysis of deferred military construction projects
Corroborating Sources
1. Military Times: "Appeals court: Trump wrongly diverted $2.5 billion in military construction funds for border wall," June 26, 2020
2. Military Times: "Judge halts $3.6B diverted from military construction projects for border wall," December 11, 2019
3. NPR: "Appeals Court Allows Trump to Divert $3.6 Billion in Military Funds for Border Wall," January 9, 2020
4. PBS NewsHour: "Behind Trump's 'unprecedented' reallocation of DOD money for border security," 2019
5. New York Attorney General: "Trump Loses Border Wall Case for Second Time, Still Cannot Use Military Funding to Build Illegal Border Wall," October 2020
Counterarguments and Context
The Trump administration argued that the situation at the southern border constituted a genuine national emergency justifying the use of emergency powers, and that 10 U.S.C. Section 2808 authorizes the Secretary of Defense to redirect military construction funds when the president declares a national emergency requiring the use of the armed forces. The administration contended that the border situation met this threshold because troops had been deployed to the border. The Fifth Circuit's initial ruling that the spending could proceed suggested that the legal question was not clear-cut, and the Supreme Court allowed some wall construction to continue while litigation proceeded. However, the Ninth Circuit and another federal court found that the administration had exceeded its statutory authority, and the fact that Congress had explicitly considered and rejected the requested funding level made the emergency declaration an end-run around the appropriations power. The bipartisan congressional vote to terminate the emergency, including 12 Republican senators, demonstrated that even members of Trump's own party recognized the diversion as exceeding presidential authority. The impact on military families, whose housing, schools, and facilities were delayed or cancelled to fund a project Congress had declined to authorize, underscored the tangible consequences of the diversion.
Author's Note
This entry is classified as Tier 1 because federal courts adjudicated the legality of the fund diversion and ruled it unlawful. The case represents one of the clearest examples of executive power being used to override an explicit congressional decision: Congress voted on the specific amount of border barrier funding, the president rejected that amount, and then used emergency powers to redirect funds Congress had appropriated for other purposes. The bipartisan congressional rejection of the emergency declaration, twice vetoed by the president, adds to the significance of the episode.