President Trump's Emergency Declaration Is Much Less Radical Than TDS Sufferers Are Claiming

Chicken Little by Dave Walker, licensed under CC BY-SA 2.0/Original

Chicken Little by Dave Walker, licensed under CC BY-SA 2.0/Original

When one looks at the coverage of President Trump’s declaration of a state of emergency on our border with Mexico you’d think that Trump has killed someone’s dog. At NRO, David French, who seems to be auditioning for a spot at The Bulwark, claims to prove via a “lawsplainer” that he has uncovered things that never occurred to either White House Counsel, counsel at DOD, DOJ and DHS, or the counsel at OMB.


Make of this what you will.

And the usual suspect chimed in.

Mike Lee’s office offers a less hysterical analysis that seems to be based on having actually read both the funding bill and President Trump’s order and not on going stampy-feet and yelling “OrangeManBad!!1!11!”

After the “lawsplainer” perhaps we should turn to a professional for a “legislative-splainer.”


Some quick notes on early coverage of President Trump’s announcement today that pretty much all reporters are missing 1/

The WH did not make one executive action today. In reality they made three, only one of which involved an emergency declaration. 2/

First the WH announced they would be funding $601 million in wall construction from the Treasury Forfeiture Fund, relying on 31 U.S.C. § 9705. This does not require an emergency declaration. 3/

Second, the WH announced they would be funding $2.5 billion in wall construction under 10 U.S.C. § 284 (this is MilCon $ for combating drug trafficking). This does not require an emergency declaration. 4/

Finally, the WH announced they would be funding $3.6 billion under 10 U.S.C. § 2808. This money does require an emergency declaration. 5/

According to the WH this money will be spent sequentially so the § 9705 money will be spent first then the § 284 money then the § 2808 money. 6/

So depending on how fast they can begin construction, they will have to spend over $5 billion (including the $1.3 billion in fencing appropriations) before any of the emergency money is ever tapped 7/

As Conn Carroll makes clear, the emergency declaration is not something that is going to happen immediately. To spend $5 billion takes time, even for the US government. I don’t know what kind of a contract vehicle they have for building and constructing the wall. Unless they have one that can be used, that is, one that has not exceeded its original award amount by a certain percentage via modifications, a new bid process will be required. If there is an Indefinite Delivery/Indefinite Quantity (ID/IQ) vehicle available, the vendors covered by that contract will have to submit bids.


In short, the declaration reads as more of a public relations gimmick to make the decision appear to be controversial than it is actually blazing new territory.



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