Yesterday, the Defense Department announced it would make available up to $1 billion for President Trump’s border wall project. Despite the president’s heavily publicized national-emergency declaration last month, yesterday’s Pentagon statement does not rely on that contested authority. Instead, Acting Secretary of Defense Patrick Shanahan pointed to a preexisting statute aimed at curtailing illicit drug trafficking.
The transfer of Defense Department funds will help the Department of Homeland Security build 57 miles of 18-foot high fencing, construct and improve roads, and install lighting in the Border Patrol’s El Paso and Yuma sectors. The El Paso sector covers all of New Mexico plus the westernmost tip of Texas, including 268 miles of border, while the agents headquartered in Yuma, Arizona are responsible only for a 126-mile strip of the border in western Arizona. Across the entire border between the two countries, there are roughly 650 miles of border barrier.
According to the Defense Department, 10 U.S.C. § 284(b)(7), enacted in 1990, authorizes its seven-digit transfer of funds to DHS. That provision authorizes the department to financially assist other federal departments with “Construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” No judicial decision has interpreted this language. According to a White House fact sheet publishes in February, § 284 opens approximately $2.5 billion in Defense Department funds for border-wall construction.
The lack of judicial interpretation leaves a lot of room for ambiguity. Did, for example, Congress require that the sections of border where Defense Department funds will be spent are especially prone to “drug smuggling”? A lot of the deadliest drugs get across the U.S.-Mexico border through land ports-of-entry or by mail from China. If § 284(b)(7) doesn’t require any evidentiary proof of an exceptional amount of drug activity, what is to distinguish these segments of the border from any other inch? Some number of drugs are illicitly moved over most of the border. Is it enough to show that Border Patrol officers apprehended a minimal amount of marijuana?
President Trump’s most frequent justification for border-wall construction focuses on the threat of migration. However, his February national-emergency proclamation was sure to add illicit drug activity to the mix. It is worth reiterating, however, that § 284(b)(7) doesn’t require invoking the national-emergency proclamation. A separate statute, 10 U.S.C. § 2808, governs the national-emergency proclamation. Under that provision, a national emergency would free up money slated for military construction projects.