The Military And Border SecurityUpdated: May 12, 2021
During the tenure of the 45th President of the United States, much political noise was made about constructing a proposed border wall that, according to several sources, was originally meant to be made out of concrete and stretch some two thousand miles. What actually happened?
A BBC.com report from October 2020 notes that 15 actual miles of new wall had been built, with another 350 miles of “replacement or secondary barrier.” Only some 220 miles of wall were “under construction” at press time when the BBC filed its report.
There were attempts–some successful, some not–to divert funds intended for Department of Defense projects for use on the failed border wall project, and there was a degree of controversy over the President declaring an emergency at the border and deploying federal troops there to support the Department of Homeland Security.
Trump-Era Border Wall Shut Project Down By Biden
What the wall project actually turned out be–an unfinished, and by most accounts easy-to-scale structure erected in patchwork fashion across multiple states, has been suspended in 2021 by the 46th President of the United States, Joseph R. Biden.
Rollcall.com reported on March 17, 2021, that “Dozens of Senate Republicans on Wednesday accused President Joe Biden of violating federal spending law when he froze funding for border wall construction”. In spite of that, work has stopped. President Biden has gone on the record stating that existing structures would not be torn down, but no expansion of the border wall project was permitted.
The U.S. – Mexico Border Wall Saga
The Department of Homeland Security (DHS) is charged by federal law to control traffic at the border, prevent contraband, and to prevent people from entering the United States without going through the necessary paperwork and procedures. DHS is authorized some assistance from the Department of Defense, as found in Chapter 15 of Title 10 of the United States Code, 10 U.S.C. §§ 271–284.
These two agencies have and do work together to enforce border laws. But there are federal lawmakers who feel those efforts are not enough. During the term of the 45th President of the United States, the border wall and its funding became a huge controversy; there was much infighting on Capitol Hill.
How much fighting? Working backwards from 2020, we see that in February 2020, Defense Secretary Mark Esper approved nearly $4 billion to be transferred from military programs to the border project. The following month, 19 states filed suit against the Trump administration, stating the transfer of funds was unconstitutional.
At the end of 2019, the saga of the controversial proposed border wall between the United States and Mexico entered a new chapter when the 2020 National Defense Authorization Act was passed. The act included well over a billion dollars in funding for the border wall.
At the beginning of what some describe as the “Border Wall Budget Crisis”, (Feb. 14, 2019) Congress approved a $333 billion federal budget and sent it to the President’s desk. The budget did not contain some $8 billion in funds requested for the construction of a border wall along the southern U.S. border, and there were fears that the lack of these funds may result in a veto of the budget.
But the budget was signed into law, and rather than depending on it for money to construct such a wall, the President instead declared a national emergency and announced his intention to divert federal funds from other sources to the border project.
Opposed lawmakers promised legal action to prevent diversion of such money including funds slated for military construction projects to build family housing, hospitals, and other force improvement measures. Not all the proposed diversions of federal money would come from this single source; funds from drug interdiction seizures and other federal agencies would also be included.
Border wall operations have not gone unchallenged, and they certainly have not escaped national scrutiny. But what is not so well-publicized are some of the issues that go with the construction of such a wall, regardless of how the funds for that wall are sourced.
For example, one serious issue slowing down the construction of a physical barrier at the U.S. border? Private land ownership. The government is not allowed to simply come into privately owned areas and start building.
The government must either get permission from the owner, seize the land using the laws of eminent domain, or otherwise acquire access to the land.
Many online news outlets report that private land ownership is creating headaches for those planning the creation of physical border walls where none currently exist. The Wall Street Journal reports that doing more than what was mentioned above, on private land, requires a significant effort. “The Trump administration will have to identify and serve thousands of people with legal notices and enlist experts to estimate the value of each parcel,” according to WSJ.
Private land ownership is a critical factor in the border wall controversy. The first hurdle to clear was getting the funds. Strategizing a construction project across thousands of miles of desert terrain with private property along the way could prove to be the biggest challenge facing the project.
The Border Wall: Built With U.S. Troops, And/Or U.S. Military Funds?
The Pentagon and the Department of Defense started preparing for an extended presence at the United States’ southern border at the beginning of the border wall issue. A Jan. 15, 2019 report by CNN observes that the Pentagon approved additional Defense Department support for the Department of Homeland Security along the southern border with Mexico.
A Pentagon statement included the news that the U.S. military is “…transitioning its support at the southwestern border from hardening ports of entry to mobile surveillance and detection, as well as concertina wire emplacement between ports of entry.”
The U.S. Army Corps of Engineers was tasked in the border wall project, reviewing some eight different wall project proposals for feasibility and/or other assessments. In any case, the use of U.S. troops at the border would be in a support role (that may or may not include assistance with the actual construction project), with the Department of Homeland Security responsible for any law enforcement activities which may be required.
Who Has Sent Troops To The Border Before?
In spite of the many arguments about the current border wall situation and whether or not American soldiers, airmen, marines, and other military members should be there, historically there is a precedent for sending troops to reinforce border security.
This has been done by several U.S. Presidents including George W. Bush and Barack Obama. While there are those who would make the border wall issue focus completely on the current administration, it should be pointed out that lawmakers on both sides of the aisle have supported troops going to the U.S. border in the past.
The Border Wall Funding Controversy
At the end of 2019, there wasn’t a true controversy over the defense budget, all eyes were fixed firmly on impeachment proceedings and the charges of high crimes and misdemeanors brought against President Donald J. Trump.
Defense spending wasn’t an easy, rubber-stamp passage of the act. Two compromise bills had to be signed in order to authorize defense spending in 2020, and at the end of the process the President signed the 2020 National Defense Authorization Act into law, which included funds for the border wall.
Did the same kinds of insistent back-and-forth over the funding from the previous year show up again? Democrats did attempt to contest early portions of the bill’s border wall funding details, but the compromise bill included over $1 billion for the wall.
There are some who question a perceived lack of pushback from Democrats in this area given the more robust opposition to the wall’s funding in previous sessions of Congress, but impeachment proceedings and a likely high amount of “issue fatigue” over the border wall may have contributed to the factors which helped pass the funding.
Border Wall Funds And The Government Shutdown 2018
The government shutdown in late 2018 and early 2019 happened over a disagreement – the President wanted approximately $8 billion in border wall funding, which did not sit well with Democrat lawmakers who passed a budget without those funds. The President vetoed the budget, and threatened to declare a national emergency to get funding for the wall if another budget was sent forward without the money for the construction project.
Another budget was passed by Congress without funds for the wall as requested. This time, the President chose to avoid another partial government shutdown, sign the budget, and proceed with the national emergency plan.
Declaring the national emergency was not necessary to divert some federal funds from the U.S. Treasury and drug enforcement operations, but to obtain certain funds from military sources would require the declaration.
There is some $21 billion in “unobligated funds” lurking in military construction budgets according to several sources, including a CBS News report noting that Congress had approved $1 billion for a military medical center in Germany where wounded soldiers from Iraq and Afghanistan have been treated. This money – including the hospital funds – has not been spent.
A declaration of a national emergency technically allows the President, who is also the Commander-in-Chief of the United States military, to spend these funds in an unrestricted way as long as the use of those funds supports the military in some fashion. The legal challenges to this declaration may include the validity of declaring the situation at the U.S. border as an “emergency.”
A “Hidden” Strategy Behind Legal Challenges To The Border Wall Project?
One thing mentioned occasionally in news reports about the border wall controversy in connection with the President’s declaration of a national emergency is the time limit under Title X laws permitting the use of federal funds in a national emergency.
A report by Stars And Stripes notes that Section 2808 of Title 10 of the U.S. Code points out that “a presidential declaration under the National Emergencies Act of 1976 empowers the undertaking and funding of military construction projects” and has been used 58 times since 1976 when the law was passed.
Thirty-one national emergencies are still active according to that report. But what the report does not mention is that once appropriated, such funds are only available for five years.
Issuing repeated legal challenges could tie up the Trump Administration in proceedings for quite some time. All the while the clock is ticking on how and when the re-directed federal funds are to be used.
What Is The President Legally Permitted To Do With U.S. Troops And The U.S. Border?
Federal law prevents the use of the active duty United States Army and Air Force to conduct law enforcement on U.S. soil. This law is called the Posse Comitatus Act and mentions the active duty Army and Air Force by name, and the Navy and Marine Corps by implication.
The Air National Guard and Army National Guard are not technically affected by Posse Comitatus, but their involvement in any border wall mission in the United States would be at the pleasure of the state governor, not the President.
In general, Posse Comitatus does not have a say in how federal funds might be directed in the scenario suggested by the White House, so the budget controversy and the idea of diverting funds from military purposes do not find an answer, permission, or denial of permission in this federal law.
What Would U.S. Troops Do At The Border If They Are Not Enforcing Domestic Laws On U.S. Soil?
Construction of a border wall requires support in a variety of areas. Any construction project requires physical security – protection of the building site and equipment, etc.
Then there is the need for logistical support – supply lines and security of them, providing power and running water, medical support, possible housing issues for long-term construction needs, heavy machinery transport, etc.
However DoD resources are meant to be used at the border, federal law restricts them from serving in ways that violate the federal laws authorizing their support. Domestic law enforcement is not possible for active duty troops who are not operating under the direction of a martial law order or other constitutionally authorized circumstance.
Joe Wallace is a 13-year veteran of the United States Air Force and a former reporter for Air Force Television News