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.

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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.”

https://twitter.com/conncarroll/status/1096507435257348096

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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.

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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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