DoD continues to defend their performance. POLITICO spent over a year trying to get records that only covered the Navy. It took the department nine months to respond on a Freedom of Information Act request. Even then, the Comptrollers office withheld the most important documents or did not include them. The correction took three more months, one year after the FOIA had been filed in July 2020.Many in both parties are eager to forget about the drama, with Trump now gone and a new White House trying desperately to get the wall funds back. However, more than $1Billion is not going back. It is now a legacy of distrust, and persistent questions about how Congress can better safeguard its constitutional power to control the purse.This is something we need to keep on our radar screen," said Jack Reed, Senate Armed Services Chair (D-RI), who also serves on Appropriations. It is better to be forewarned than forearmed.Reed said that if there is a situation in which a president wants money to go to the military, and it goes to a domestic, personal or political agenda, we should be able stop that.A "national emergency"The Pentagon was able to exercise great discretion when the White House invoked its unique construction powers in the wake of declaring a national emergency early in 2019. The pertinent statute, which was enacted in 1982, is known as 2808 in political shorthand. It allowed DoD to proceed in accordance with any other law.The most remarkable thing about the process was its inability to be transparent: It concealed from Congress and federal courts the entire scope of what was being spent on the wall.Judges with little knowledge of the appropriations process had difficulty deciphering the diversion. Repeated assurances were given that DoD was only prioritizing funds already in its possession. The administration gave as few details as possible to any judge who asked.You answered U.S. question "reprioritize", Circuit Judge Daniel Collins at a hearing in 2020. I would like to know as much as possible about what happens. What happens when money moves from one account to the next? What happens to the money in this instance?Collins was informed by a Justice Department attorney who represented the administration that there is no transfer or reprogramming.This was true to a certain extent. The budget records clearly show that this was only a small part of the story. It is not possible that there was any reprogramming. This is because DoD has exempted itself form the budget rules that require a reprogramming.The whole exchange was similar to a mayor telling his local traffic judge that he wasn't speeding and explaining that he had exempted from speed limits.This is illustrated by a closer inspection of the budget ledgers that were released to POLITICO. These documents are only applicable to the Navy. However, other military services also saw the same pattern in transactions.A June 18, 2019, document shows that the fiscal 2019 Navy appropriations are proceeding as planned with DoD approvals. This is exactly what Congress had expected.Three months later, Sept. 16, the corresponding ledger reveals a completely different world.DoD withdrew its prior approvals, and deferred further actions on eight overseas projects that Congress had allocated $205.8 million to Navy. DoD set out to change that by removing two-thirds of the funds.Administratively, the full $205.8million was realigned with a new project line for the wall. This line was inserted under CONUS UNSPECIFIED into the Navy's construction budget.The Army Corps of Engineers was then able to sub-allot the entire sum for the construction of the wall. This allowed the Corps of Engineers to immediately issue checks on the Navy account and avoided a transfer between the two service.Avoiding the lawAll these shortcuts were made possible by budget exemptions that DoD granted.In response to Richard Nixon's power grabs of the 1970s, the Impoundment Control Act was abandoned. This law requires that a special message notification be filed with Government Accountability Office when a department delays prior appropriations, as was the case with eight Navy projects. The GAO confirmed that such a notice was never given.GAO has not made a ruling on the matter. However, DoD's administrative realignment for the Navy funds had all of the hallmarks of a required programing. GAO defines a reprogramming as when an executive agency moves funds from an appropriations account to be used for purposes not contemplated by Congress.The new Navy project line to build the wall wasn't even in existence when Congress appropriated funds for it in fall 2018. GAO will also consider the strict rules that have governed military construction appropriations for many years, based on its past decisions.In its financial management regulations, the Pentagon dedicates pages to reprogramming procedures. These rules are referenced in military construction appropriations bills. Two of these Navy projects, one in Germany and the other in Bahrain, fell within the scope of this language in fiscal 2019.There was some cleverness involved in sub-allocating Navy funds to Army Corps.DoD must be fair and acknowledge that there have been numerous precedents in which some military services have sub-allocated their annual construction funds to Corps. The Navy does not use this procedure very often, and it is not clear if they intended to tell the courts that a diversion of this magnitude would have required transfers.The Navy has its own engineering command called NAVFAC. A DoD directive that was updated only a year prior to the diversion named NAVFAC the lead agent for Navy projects funded in the U.S.According to NAVFAC, 13 of the 287 Navy's military construction projects have required sub-allocations of funds to the Corps in the last five years. This is less than 5 per cent compared to the 100 percent sub-allocation for the wall diversion.Christopher Sherwood, a spokesperson for the DoD, stated that the Department used the same procedures to provide funds to [the Corps of Engineers] in order for them to complete 2808 projects. This is the same procedure it used for decades. All funds were retained their original appropriation IDs because the components sub-allotted them to the Army. The funds were not transferred or reprogrammed.Congress RespondsReed, a West Point grad and Armed Services chair was acutely aware of the impact that diversions have on the military, particularly its personnel. The mix affected troops and their families from Kentucky through Maryland to North Carolina. It also affected schools, day-care centers, and water treatment improvement facilities.Reed stated that the lack transparency is a problem from his Appropriations seat.He said that they were not being informed because their interpretation of the normal reprogramming rules didn't apply because it was under 2808. The spirit of 2808 is that a president should be able to transfer funds to meet military needs in an emergency situation. Trump ignored this. Trump defied all laws and used them for his political advantage.Congress made the first steps in attempting to assert itself last winter. Trump is on his way out following the 2020 election.The annual defense authorization bill was passed over the president's veto. It included a House-initiated provision to limit DoDs discretion under 2808 authority.While the department will continue to be able to circumvent current laws, it will have to notify Congress about changes. A $500 million cap will be imposed on all military construction projects that are made under the 2808 authority in an emergency. A tighter cap of $100million would apply in the event of a declaration of national emergency, where 2808 authority could only be used to build projects within the U.S.It is not clear if the Appropriations leadership will insist on further information to keep it better informed. A bitterness remains towards DoD over its treatment of the panel members and their staff, a stain that is difficult to erase. In an interview, Sen. Jeanne Shaheen (D.N.H.), stated that the Department of Defense wasn't forthcoming.She said that there has not been much discussion on the panel as she is a member. Shaheen stated that there are many people who want to address the issue, but there isn't a bipartisan willingness.The committee met this week in order to approve a new bill for military construction. This was the first time that the topic was discussed publicly since Trump's election. This silence demonstrates how Trump's diversion is still so strongly associated with it. Republicans may view any tightening of budget rules as an attack on Trump and implicitly the GOP. It has become too much for Senate Democrats who are aware they must win over Republicans if they want to move forward on appropriations bills.The National Emergency Act, which is at the root of the problem, has been largely ignored. It was enacted in 1970 to curb White House power grabs. However, it has been altered by court decisions that have placed Trump and his associates in the driving seat. Reed acknowledged that the NEA might need to be reexamined. However, conservative Republicans with a libertarian streak like Sen. Mike Lee from Utah have been leading the charge.Lee, unlike many members of his party, was open to challenging Trump's emergency declaration in 2019. His so-called ARTICLE ONE legislation now seeks to limit the emergency act that Trump used to allow DoD to exercise its 2808 powers. His plan is to limit future emergency announcements under the NEA at 30 days. Congress would then decide if they were continued.Lee's ideas are now more prominently being discussed by the right as a result of a Democrat in the White House. They have been criticized for not taking urgent action to address climate change. Lee also found support in Senator Bernie Sanders, a Vermont Independent who included Lee's proposal in a larger bill that reaffirmed Congress' authority on a variety of national security issues.The SCOTUS factorThe U.S. Supreme Court is one last exception. The decisions of the justices this fall could increase the need for Congress to do more.The petition for writ of certification was filed by Trump last year on his behalf after his border wall was defeated in October 2020 at the U.S. 9th Circuit Court of Appeals. A three-judge panel ruled against Trump in that decision. It ruled that DoD's 2808 authority was violated by the wall projects not meeting the military standards.Trump attempted to overturn this ruling by bringing the case before the conservative Supreme Court. To the dismay and surprise of wall challengers, Trump has now called Bidens. The new administration is asking the justices not to overturn any wall-related rulings that might limit Biden's executive powers.This strategy was first discovered in June when the Solicitor Generals office suggested that an earlier wall ruling could be used as a base for meddlesome suits challenging Pentagons transfer power. On July 2, the Court agreed to overturn that decision.The walls challengers, a legal team consisting of the American Civil Liberties Union and the Sierra Club, reacted to their concerns in filings to Court on July 19. The core argument of the plaintiffs was that while the Pentagon may regularly use its transfer powers, there is little commonality in the use DoDs 2808 authority. According to plaintiffs, the greatest risk for the nation is that Trump's 9th Circuit decision is vacated. This will erase all of its legal history and make future presidents more likely to follow the same path.Biden's position likely reflects the deeply ingrained culture in the Solicitor Generals office that defends executive power. It is a striking situation considering the president's long tenure in the Senate. His administration has also hurt its credibility by being less transparent about its intentions.POLITICO asked the Justice Department for guidance on the plaintiff filings. The Justice Department waited more than a week before it decided to decline to comment on the date of its reply. The Solicitor Generals office filed a response less than 24 hours later, on Tuesday. It stated that it was going to appeal the Ninth Circuit decision.Dror Ladin, an ACLU lead attorney in the case, stated that multiple courts had already found that Trump’s fake emergency was a violation of the Constitution. Most people would be shocked to hear that the Biden administration continues to seek to overturn those rulings and allow for future presidential abuses of emergency powers.
