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Trump officially declares national emergency to fund border wall. Here's what's next

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WASHINGTON — President Donald Trump announced Friday that he will declare a national emergency to fulfill his pledge to construct a wall along the U.S.-Mexico border.

Trump said he will use executive powers to bypass Congress, which approved far less money for his proposed wall than he had sought. He plans to siphon billions of dollars from federal military construction and counterdrug efforts for the wall. The move is already drawing bipartisan criticism on Capitol Hill and expected to face rounds of legal challenges.

Here's what the future of this process could look like. 

What does the law say?

A national emergency allows Trump to unlock certain funds provided under statutes previously passed by Congress. A draft proclamation reviewed by CNN last month cited Title 10 of the US Code, which paves the way for Trump to dip into a stash of Pentagon funds that are earmarked but have no signed contracts for spending that money.

That would give the President authority to pull from military construction funds and civil works projects, like infrastructure repair projects.

Trump has to notify Congress about where he decides to pull money from, but he does not need approval from Congress, according to congressional aides.

For Trump to invoke Section 2808, specifically, the emergency would require the use of the armed forces.

In that event, the "Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces."

Congressional aides also told CNN that "there will be legitimate questions about whether building a fence along the border" would be in support of the armed forces, something required when using military construction funds.

However, Trump's decision to deploy active duty troops to the border could provide cover for that.

Trump Border Security

President Donald Trump speaks during an event in the Rose Garden at the White House to declare a national emergency in order to build a wall along the southern border, Friday, Feb. 15, 2019, in Washington. (AP Photo/ Evan Vucci)

Where could the money come from?

According to options that had been considered, the administration could pull $681 million from Treasury forfeiture funds, $3.6 billion in military construction, $3 billion in Pentagon civil works funds and $200 million in Department of Homeland Security funds, an official told CNN late last month. It could also include up to $2 billion in counter-narcotics funds.

A White House official told CNN late Thursday night that the move will allow for about $8 billion for border barriers. The money could come from:

  • $1.375 billion in the Homeland Security appropriations bill. Congress said those funds cannot be used to build a wall but can be used to construct other types of barriers.
  • $600 million from the Treasury Department's drug forfeiture fund, which would come from an executive action.
  • $2.5 billion in Defense Department's drug interdiction program, which would come from an executive action.
  • Plus $3.5 billion from the Defense Department military construction budget, which would require the emergency declaration.

ABC was first to report on the funding breakdown.

The congressional aides added that the Department of Defense will select which projects to draw from and Congress will not be involved.

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"It will be a DoD action, we in Congress will not have a say," they said. "The law doesn't say he has to tell us which project but you can be sure we will be asking that question."

What legal challenges are ahead?

The proclamation likely wouldn't make the path forward any easier.

House Democrats, for one, are expected to pursue legal challenges in the event of a national emergency proclamation. In a press conference Thursday, Speaker Nancy Pelosi denounced the notion that the situation along the border is an emergency, adding that Democrats are reviewing their options.

The House can argue, for example, that the situation along the border is not a national emergency, according to Robert Chesney, who teaches at the University of Texas at Austin School of Law. But chances of succeeding are slim, given that the definition of a national emergency is vague.

The follow-up then is whether the statutes that allow the President to dip into funds without congressional approval are properly invoked. That, too, may be difficult for Democrats to win on.

Landowners along the border whose property is at risk of being seized, on the other hand, have a greater chance at mounting a successful challenge. All 55 miles included in the agreement reached by lawmakers is in the Rio Grande Valley, where much of the land is privately owned.

Who would build the wall?

The US Army Corps of Engineers would likely be deployed to construct the wall.

The Pentagon has assisted the Department of Homeland Security in the past. For example, the Army Corps has helped evaluate prototypes of the border wall.

During his presidency, Trump has repeatedly looked to the Defense Department for assistance along the border. In the run-up to the 2018 midterm elections, the administration deployed more than 5,000 troops to the border, and more recently, aviation support and assistance with installing concertina wire. Trump also previously flirted with the idea of the Defense Department fronting money for the wall.

Trump has argued that an increase in border apprehensions necessitates a wall and additional reinforcements to stem the flow of migrants. According to federal data, Customs and Border Protection apprehended nearly 400,000 people along the southwest border in fiscal year 2018, an increase from fiscal year 2017, but a decrease from fiscal year 2016 figures.

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