Senate Dems: Using Pentagon funds for border wall likely illegal
© Greg Nash
A pair of Senate Democrats are warning the Pentagon against using its budget to help build President TrumpDonald John Trump20 weeks out from midterms, Dems and GOP brace for surprises Sessions responds to Nazi comparisons: 'They were keeping the Jews from leaving' Kim Jong Un to visit Beijing this week MORE's U.S.-Mexico border wall, saying the move could potentially be illegal. 
 
Democratic Sens. Dick DurbinRichard (Dick) Joseph DurbinLive coverage: FBI chief, Justice IG testify on critical report Hugh Hewitt to Trump: 'It is 100 percent wrong to separate border-crossing families' Opioid treatment plans must include a trauma-informed approach MORE (Ill.) and Jack ReedJohn (Jack) Francis ReedReed: ‘Preposterous’ for Trump to say North Korea is no longer a nuclear threat Senate Dem: Using young children as a ‘political foil’ is ‘abhorrent’ Sunday Shows preview: Lawmakers, Trump allies discuss Russia probe, migrant family separation MORE (R.I.) sent a letter on Monday to Defense Secretary James MattisJames Norman MattisHillicon Valley: Supreme Court takes up Apple case | Senate votes to block ZTE deal | Officials testify on Clinton probe report | Russia's threat to undersea cables | Trump tells Pentagon to create 'space force' | FCC begins T-Mobile, Sprint deal review Pentagon: Planning for August 'war game' with South Korea suspended Dem: Trump 'Space Force' would 'rip the Air Force apart' MORE asking for his views on the legality of using fiscal 2018 money marked for the military to pay for the wall. 
 
"Since no funds have been appropriated for that purpose, we conclude that an expenditure of funds by the Department of Defense for the construction of a border wall would very likely violate the Antideficiency Act," they wrote. 
 
Durbin and Reed added they also believed the Pentagon "has no legal authority ... to use appropriated funds for the construction of a border wall" unless they could get the financial reshuffling approved by Congress. 
 
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Trump is doubling down on his months-long demand for the controversial border wall that was at the heart of his 2016 presidential campaign. 

 
"Must build Wall and secure our borders with proper Border legislation. Democrats want No Borders, hence drugs and crime!" Trump said in a string of immigration-related tweets on Monday morning.
 
He added that Congress must pass "Border Legislation, use Nuclear Option if necessary." 
 
Senate GOP leadership has repeatedly said it will not go "nuclear" and get rid of the 60-vote filibuster for legislation, which Trump and conservatives say is keeping their priorities from getting passed. 
 
Even if they did go nuclear, it's unlikely it would help the White House's immigration and border-security framework. The legislation would need a simple majority to pass, but only got 39 votes earlier this year. 
 
The Pentagon said last week that Mattis and Trump have spoken about the possibility of using Defense Department funds for the border wall. 
 
Dana White, a Pentagon spokeswoman, said they "have talked about the proposal, potentially" and it was an "initial conversation." 
 
The Washington Post also reported that Trump has privately raised the idea with GOP leadership on Capitol Hill. A Pentagon official told the Post that Trump's plan would require congressional approval. 
 
But it's unlikely Congress would sign off on such a move, with Democrats, and some Republicans, opposed to providing funding for the wall without a long-term deal for "Dreamers" — immigrants brought into the country illegally as children.
 
Durbin and Reed added in their letter that the Defense Department's appropriations includes "pay, operations, and equipping of the Armed Forces, but contains no provision making appropriations for constructing a wall along the U.S. border."  
 
"[And] reprogramming cannot undo a rejection by the Congress of funds for a certain purpose," they wrote. 
 
Trump signed a mammoth government funding bill late last month despite an eleventh hour veto threat. 
 
The $1.3 trillion bill provides $1.6 billion for border security, including limited funding for new fencing. 
 
Democrats claimed the omnibus as a win in part because the border wall funding level is far below the $25 billion the White House reportedly requested. 
 
A source familiar with the talks told The Hill last month that the White House asked for $25 billion in border money to be included in the omnibus in exchange for a 2 1/2 year extension of the Deferred Action for Childhood Arrivals program. 
 
Democrats rejected the offer and countered with $25 billion in border security and a pathway to citizenship for about 1.8 million immigrants. The White House rejected the counteroffer, according to the source.