Trump Declares National Emergency in ‘Slap in the Face to Military Families’

President Donald Trump’s plan to declare a national emergency will divert $3.6 billion earmarked for U.S. military construction projects—possibly hospitals and infrastructure improvements—to fund a portion of his long-promised wall along the southern border, a move that experts say is an affront to military families.

“I’m going to be signing a national emergency,” Trump said Feb. 15 in remarks in the Rose Garden. “It has been signed many times before … for far less important things in some cases, in many cases. We are talking about an invasion of our country with drugs, with human traffickers, with all types of criminals and gangs.”

In total, Trump will have access to roughly $8 billion that can be used to secure the southern border, said acting White House chief of staff Mick Mulvaney in a call with reporters ahead of the president’s remarks.

The announcement, which came as the president also planned to sign into law a government spending bill to avoid a second government shutdown, comes just days after a Senate Armed Services subcommittee held a marathon hearing on the deplorable state of some military housing.

During the hearing, military families described in shocking detail living in crumbling homes, and lawmakers expressed outrage at the allegations of “unacceptable” conditions of privately managed housing. On the same day, a group released a survey of living conditions at U.S. bases that described black mold, lead paint, infestations, flooding, and more.

“Having the president declare a national emergency in order to use [military construction] funding just days after a horrible SASC hearing on the terrible state of privatized military housing is a slap in the face to military families,” said Loren DeJonge Schulman of the Center for a New American Security. “The trade-off may not be direct—it’s not clear what the funding might have otherwise done—but it’s an ugly symbol of priorities.”

Trump will use a legal provision that allows the president to redirect unobligated military construction funds—money that has been appropriated by Congress and set aside for specific projects but not yet issued—in the event of a war or national emergency.

In addition to the $3.6 billion in military construction funds, the White House has identified $1.375 billion in the appropriations bill the president plans to sign to avert the shutdown, $600 million from the Treasury Department’s forfeiture funds, and roughly $2.5 billion from Pentagon funding for counterdrug activities, some of which will be reprogrammed from other Defense Department accounts, Mulvaney said.

Congressional aides said as of Feb. 14 the Defense Department had just $800 million in its counterdrug coffers.

Trump previously asked Congress for $5.7 billion this year to build the wall along the U.S.-Mexico border.

“We think this is something that will give us the necessary funding to be able to execute the wall in a timely manner,” Mulvaney said.

The use of the emergency provision is problematic in many ways, experts say. The $3.6 billion, which could be taken from construction projects such as hospitals, family housing, and maintenance, would not be replenished until Congress passes another defense appropriations bill, according to two congressional aides speaking on condition of anonymity. This could leave critical infrastructure improvements in limbo. It is still unclear which projects the money would come from, the aides said.

A senior administration official said the projects under consideration are “lower priority” efforts, for instance ones that “might be able to wait a couple of months into next year.” He noted that the $3.6 billion is “just a small fraction” of the entire military construction fund.

“We are going through a filter to ensure that nothing impacts lethality, readiness on the part of the military construction budget.”

The official said the White House plans to replenish this money back to military construction as part of the fiscal year 2020 budget it will submit to Congress in March.

“The verdict is currently out on how this will affect military families, but coming so soon after a hearing on military housing conditions it certainly highlights one of the many potential problems with trying to shift money allocated for one thing by Congress and moving it to something else,” said Andrew Boyle, who works as counsel for the Liberty and National Security Program at the Brennan Center for Justice.

There are also legal question marks surrounding the president’s invocation of a national emergency. DeJonge Schulman said that any such declaration “will almost certainly be tied up in litigation right away.” One wrinkle in particular that will invite a legal challenge: The provision requires that funds taken from construction money be used in support of the armed forces.

“There will be legitimate question about whether building a fence along the border is in support of the armed forces,” one congressional aide said. “That would be worked out in court.”

Trump declaring a national emergency could also prompt a political response. House Democrats are mulling a joint resolution to nullify the declaration—one that would force Senate Republicans to vote on a politically divisive issue.

At any event, invoking a national emergency outside of war or high-profile disasters like the Sept. 11, 2001, terrorist attacks sets a troubling precedent, DeJonge Schulman said. House Speaker Nancy Pelosi (D-Calif.) hinted that a future Democratic president could similarly use the emergency measure to implement sweeping changes in national policy without going through Congress.

For example, one statute would allow the president to suspend rules prohibiting the testing of biological and chemical weapons on unwitting people, Boyle said. Another would allow the president to shut down or take over radio stations. Still another allows the government to freeze the assets of people—including Americans—and prohibit them from engaging in any type of financial transactions in which a foreign national has an interest.

“It’s concerning when any powers intended for emergency use are used in nonemergency situations in order to avoid the check of congressional legislation and power of the purse on executive action,” Boyle said.

However, Mulvaney pushed back on the concern that the move creates a potentially dangerous precedent.

“It actually creates zero precedent,” he said. “This is authority given to the president in law already, it’s not as if he just didn’t get what he wanted so he’s waving a magic wand and taking a bunch of money.”