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President Donald Trump can likely begin building new sections of the border barrier, despite a federal lawsuit filed by California and 15 other states on Monday challenging the the national emergency declaration he issued Friday.
The reason: only some — about $3.6 billion — of the roughly $8 billion Trump wants to spend on the barrier actually requires an emergency to be declared in order to be allocated. The rest, theoretically, can be spent regardless — especially the $1.4 billion Congress approved, though it is subject to some restrictions that may not apply to the rest of the money.
Conn - Carroll - Communications - Director - Sen
Conn Carroll, communications director for Sen. Mike Lee (R-UT), explained the reasoning on Twitter Friday:
The complaint filed by California and other states on Monday in federal court affirms Carroll’s explanation — albeit inadvertently.
States - Trump - Arguments - Policy - Grounds
Though the states are trying to stop Trump from spending most of the $8 billion, their arguments largely rest on policy grounds — i.e. the argument that “an emergency declaration is not necessary” — that require the courts to set aside the president’s judgment on national security in favor of the judgment of state-level attorneys general.
The complaint acknowledges (footnote omitted):
Administration - Funding - Diversion
The Administration identified the following funding for diversion:
$601 million from the Treasury Forfeiture Fund;
Department - Defense - Construction - Projects - President
Up to $3.6 billion reallocated from Department of Defense military construction projects under the President’s declaration of a national emergency (10 U.S.C. § 2808).
That funding ($7.1 billion) is in addition to the nearly $1.4 billion Congress authorized under the border deal — which is available to be spent immediately.
Emergency - Declaration - Complaint - Argues - Emergency
The $3.6 billion that is covered by the emergency declaration would only be available, the complaint argues, if a national emergency actually existed — which the plaintiffs insist, citing various political arguments, it does not.
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