Madam Chair, I rise in strong opposition to the amendment offered by the gentleman from Texas (Mr. Burgess). His amendment would strike from the underlying bill a provision in Section 108 that blocks the Trump administration from…
Madam Chair, I rise in strong opposition to the amendment offered by the gentleman from Texas (Mr. Burgess).
His amendment would strike from the underlying bill a provision in Section 108 that blocks the Trump administration from transferring existing funds from the U.S. Army Corps of Engineers, known as the Corps, for the construction of a wall or barrier along the U.S./Mexico border.
I have been a very vocal opponent of this President's never-ending political stunt to construct a wall along our southern border with Mexico.
Through emergency supplemental bills, Congress provided billions of dollars to help American families rebuild their lives after recent storms and natural disasters, as well as prepare our country for future disasters. This emergency money in the Corps budget is not a slush fund to be raided by the President for his political purposes.
Americans have seen their lives upended, their homes and towns destroyed, and havoc wreaked upon their local economies. Our government should not abandon them in their hour of need.
I support Section 108 of the Energy and Water Appropriations title of this bill that prohibits the President from transferring any funds appropriated in this or earlier bills from being used for the construction of this wall.
I was also pleased to join with the chairs of the Committee on Transportation and Infrastructure, Mr. DeFazio, the Committee on Appropriations, Mrs. Lowey, and the Subcommittee on Energy and Water, Ms. Kaptur, in
challenging, in a letter, the underlying legal authority for the President to re-allocate existing appropriated funds of the Corps' Civil Works program for the construction of a physical barrier along the southern border.
Madam Chair, I insert a copy of the letter in the Congressional Record.
Congress of the United States,
Washington, DC, January 16, 2019.
Hon. Donald J. Trump,
The President, The White House,
Washington, DC.
Dear Mr. President: You have publicly indicated several
times that you may seek to declare a national emergency in
order to fund the construction of a physical barrier along
the southern border of the United States. Also, a number of
news reports suggest you are considering utilizing a
previously unused statutory authority to reallocate existing
funds of the U.S. Army Corps of Engineers (Corps) for this
construction.
We believe that any suggestion that you could use this
statutory authority for this purpose is misinformed. Simply
put, this authority does not authorize you to reallocate
existing Corps funds--including, but not limited to,
approximately $14 billion in disaster funds for communities
impacted by the 2017 and 2018 hurricanes or other natural
disasters--for the construction of the physical barrier. In
addition, we oppose the reallocation of existing Corps funds
from communities that are just starting to rebuild from the
devastation they faced, and for which Congress provided
emergency funds to help the lives and livelihoods of our
citizens.
Section 923(a) of the Water Resources Development Act of
1986 (33 U.S.C. 2293(a)) states that:
In the event of a declaration of war or a declaration by
the President of a national emergency in accordance with the
National Emergencies Act (90 Stat. 1255; 50 U.S.C. 1601) that
requires or may require use of the Armed Forces, the
Secretary, without regard to any other provision of law, may
(1) terminate or defer the construction, operation,
maintenance, or repair of any Department of the Army civil
works project that he deems not essential to the national
defense, and (2) apply the resources of the Department of the
Army's civil works program, including funds, personnel, and
equipment, to construct or assist in the construction,
operation, maintenance, and repair of authorized civil works,
military construction, and civil defense projects that are
essential to the national defense.
As you know, this authority has never been used by the
Corps since its enactment in 1986. Therefore, there is no
historical precedent on its use by any Presidential
administration. However, we believe that a plain reading of
this statutory provision does not provide legal authority to
reallocate existing appropriated funds of the Corps' civil
works program for the construction of the physical barrier
along the southern border you have called for.
First, section 923 unequivocally states that actions funded
by this provision ``require or may require use of the Armed
Forces'' (emphasis added). In our opinion, there is nothing
uniquely related to the planning, design, or construction of
the physical barrier that would suggest the Armed Forces' (in
this case, the Corps) involvement in these activities is
required. We understand that the Corps has, on previous
occasions and through its Support for Others authority,
participated in prior design and construction activities
related to existing barriers along with the southern border.
But, it is also our understanding that these activities were,
at best, supportive roles to other Federal agencies,
including the U.S. Customs and Border Protection, and that
none of these activities were paid for using the Corps' civil
works funds.
The legislative history of section 923 further highlights
Congress' intent that there be a military nexus as a
prerequisite to use of this authority. In contemporaneous
hearings before the Senate Committee on Environment and
Public Works, the then-Acting Assistant Secretary of the Army
(Civil Works) testified on the limited scope of this
authority--noting that this authority ``would be available
only in two limited situations: in time of war declared by
Congress, or in time of national emergency, military in
nature, declared by the President in accordance with the
National Emergences Act'' (emphasis added).
It is our belief that construction of a physical barrier
along the southern border fails to meet either of these
limited situations. On the former, there is no active
declaration of war related to the border crossing. On the
latter, there is no justification that construction of the
physical barrier is military in nature. The term ``military
in nature,'' again, implies that the situation requires the
unique presence or involvement of the Department of Defense
in its military (Armed Forces) capacity. While the Corps is a
component of the Department of Defense, its civil works
mission is focused on water resources development activities
and emergency response to natural disasters. It is in that
capacity that the Corps provides domestic construction-
related assistance through its authorized civil works
activities, or through its Support for Others authority. Yet,
these authorities are solely distinct from the Corps' role in
supporting the combat and installation readiness needs of the
Department of Defense. In our view, because construction of a
physical barrier does not necessitate the actions of the
Department of Defense in its military capacity, the use of
the Corps for construction of the barrier would not fall
within the limited scope of section 923.
Second, section 923 also requires that any project, for
which construction, operation, maintenance, and repair work
is funded under this authority, be specifically authorized by
Congress. As noted in the Congressional Record during Senate
consideration of the Water Resources Development Act of 1986,
``[this] section does not provide authority to construct any
project not authorized by law.'' Yet, the proposed physical
barrier that you are contemplating is not specifically
authorized by Congress--not as a civil works project, not as
a military construction project, and not as a civil defense
project. Therefore, your potential use of this authority
for the proposed physical barrier would fail a second test
of applicability.
Even if you were to ignore the plain text of section 923,
and continue to pursue this authority to reallocate existing
funds from the Corps, we want to be very clear who would be
impacted by your decision.
It is our understanding that the administration has
identified potentially $14 billion in construction funds from
the 2018 Supplemental Appropriations related to Hurricanes
Harvey, Irma, and Maria, as well as other disasters (Pub. L.
115-123) and an additional $2.9 billion in supplemental
appropriations related to Superstorm Sandy that remain
unobligated. These funds were specifically appropriated by
Congress to help communities in impacted states and
territories recover from devastating natural disasters.
In July 2018, the Corps released its list of specific
projects for which the 2018 Supplemental funds are planned to
be utilized. This list includes, approximately: $4.5 billion
for the State of Texas; $2.4 billion for the Commonwealth of
Puerto Rico; $2.4 billion for the State of California; $1.2
billion for the State of Louisiana; and $700 million for the
State of Florida.
Each of the states and territories that received an
allocation of emergency supplemental funds by Congress were
uniquely impacted by natural disasters.
For example, in the City of Houston, Texas, officials
believe that 82 people were killed, 13,000 people were
rescued, and more than 42,000 people were forced into
shelters by Hurricane Harvey (in addition to the 6 million
Texans who were otherwise impacted by the storm). Similarly,
in 2017, Puerto Rico faced Hurricanes Irma and Maria, with
Maria now designated as the third deadliest hurricane in U.S.
history, killing thousands of citizens, and disabling the
entire power grid of the Commonwealth for months. While these
are just two examples of the devastating impacts of recent
natural disasters, they are indicative of why Congress
decided to provide robust emergency funding to these and
similarly impacted communities that are only now starring to
rebuild.
In our view, it would be the height of irresponsibility to
take away vital reconstruction funds from communities
impacted by recent natural disasters, leaving these
communities at continued vulnerability to future disasters,
and future loss of life.
Again, we believe that section 923 of the Water Resources
Development Act of 1986 does not provide you with legal
authority to reallocate existing Corps funds to the
construction of a physical barrier along the southern border.
In addition, we oppose the transfer of Corps funds away from
communities that have already suffered enough from the
impacts of recent natural disasters, and strongly urge you
not to utilize these allocated recovery dollars for any
purpose related to the construction of the physical barrier.
Sincerely,
Peter A. DeFazio,
Chairman, Committee on Transportation and Infrastructure.
Grace F. Napolitano,
Member of Congress.
Nita M. Lowey,
Chairwoman, Committee on Appropriations.
Marcy Kaptur,
Chairwoman-designate, Subcommittee on Energy and Water
Development and Related Agencies.
Madam Chair, the construction of the President's wall is the wrong way to address our Nation's immigration challenges. This amendment would allow the President to abandon families in California, Texas, Puerto Rico, Florida, the Midwest, and elsewhere, that were impacted by recent natural disasters, in their hour of need.
I thank Chairwoman Kaptur for including much-needed funding in this bill for the Army Corps of Engineers to do their job, and for including Section 108 that protects the Army Corps from the political stunt of building a border wall.
Madam Chair, I oppose this amendment.