The Senate today overwhelmingly voted to lift President Trump’s veto of the National Defense Authorization Act, giving Trump the first veto on his term in office. Section 2801 of the Act limits the President’s ability to use “emergency” statements to divert military construction funds for construction within the United States to no more than $ 100 million per year. This largely fills the loophole Trump was trying to use to fund portions of his border wall project by using an emergency statement he issued in 2019, making a claim for around $ 3.6 billion.
In my view, this portion of the diversion of Trump’s border wall funding was already illegal for reasons outlined in a recent Ninth Circle ruling against the administration on the matter. I wrote about these topics here too. The new law only makes this point clearer in the future.
The new NDAA does not affect the ongoing litigation over Trump’s previous redirection of funds as it only applies to newly allocated funds, not those that Trump claimed from the previous NDAA. In addition, much of the funds Trump has tried to use is not based on his emergency statement, but on dubious manipulations of Section 8005 of the NDAA 2019. Again, the lower courts ruled against Trump in this diversion, but the case is currently before the Colonel Court of Justice (although President-elect Biden’s litigation may not continue, Biden keeps his promise to end the diversion of funding and the associated building of the wall immediately). Unfortunately, section 1001 of the new NDAA contains language similar to section 8005 in 2019.
In practice, in the new NDAA probaby, this limitation will have little or no impact on Trump’s border wall project, as Biden is likely to end it soon anyway. But Biden – or any other future president – will have a harder time usurping the purchasing power of Congress and using “emergency” statements to turn the military construction budget into a piggy bank for his personal pet projects.
More needs to be done to curb the misuse of “emergency” statements by the president and the usurpation of purchasing power. Both were serious issues under Trump, who declared a dubious emergency on the border to secure funding Congress refused to put on his wall. He has repeatedly tried to bypass Congress’ power over the wallet, for example to attack protective cities and urge Ukraine to start an investigation into Joe Biden and his son. It would be naive to imagine that future presidents will not engage in similar gimmicks when the opportunity presents itself. While this is not a complete solution to these issues, Section 2801 of the new NDAA is at least a step in the right direction.
Obviously, the NDAA contains many other provisions. As with any major expense account, there are many that I’m not a fan of. But I’m still glad Congress overruled Trump’s veto over its proposed changes – the removal of Section 230 protection for website providers and the removal of a provision changing the names of military bases after Confederate generals are named – would have made the calculation worse and not better.
Dismissing section 230 (an idea supported by many left and right) is a terrible idea for reasons that Hannah Cox has well summarized here. The removal of monuments (and base names) in honor of Confederate leaders is desirable for reasons that I have outlined here and here. For the US military in particular, it makes no sense to name larger bases after men who fought to smash the US to keep slavery alive.
That said, maybe the soon-to-be-renamed Fort Bragg should still include some sort of commemoration of General Braxton Bragg, widely regarded as one of the worst generals of the Civil War. His incompetence has made an important contribution to the cause of the Union! He has done more to bring about Union victory in the West than any other general on either side, with the possible exceptions of Grant and Sherman. That deserves some recognition.
UPDATE: I’ve made a few minor additions to this post.