Senate Dems: Using Pentagon funds for border wall likely illegal
© Greg Nash
 
Democratic Sens. Dick DurbinDick DurbinEx-DOJ official Rosenstein says he was not aware of subpoena targeting Democrats: report Trump DOJ demanded metadata on 73 phone numbers and 36 email addresses, Apple says Overnight Defense: Pentagon details military construction projects getting .2B restored from wall funds | Biden chooses former commander to lead Navy | Bill seeks to boost visa program for Afghans who helped US MORE (Ill.) and Jack ReedJack ReedOvernight Defense: Pentagon details military construction projects getting .2B restored from wall funds | Biden chooses former commander to lead Navy | Bill seeks to boost visa program for Afghans who helped US Biden taps tech CEO, former destroyer commander to lead Navy Top general: Military justice overhaul proposed by Gillibrand 'requires some detailed study' MORE (R.I.) sent a letter on Monday to Defense Secretary James MattisJames Norman MattisBiden's is not a leaky ship of state — not yet Rejoining the Iran nuclear deal would save lives of US troops, diplomats The soft but unmatched power of US foreign exchange programs 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.