Trump’s latest proposal to pay for a border wall very likely is illegal – a violation of the Anti-Deficiency Act.
Backing down from his pledge to shut down the government if Congress doesn’t allocate $5 billion to build the wall, Trump is now proposing that various agencies throughout the administration find surpluses in their budgets and allocate those surpluses toward building his wall.
The problem is – even if such surpluses exist in agency budgets – that money has been specifically authorized by Congress for other purposes, not for building a wall at the Mexican border. The Anti-Deficiency Act appears to prohibit using these funds for any purpose not authorized by Congress.
Normally the Anti-Deficiency Act is easily sidestepped because of Attorney General opinions that have narrowed its scope, such as not applying the Act to the White House since the White House is not an agency, and exempting volunteerism as long as the volunteer agrees not to seek compensation.
But in this instance, the second clause of the Anti-Deficiency Act seems to apply. 31 USC 1341(a)(1)(B) prohibits federal employees of agencies from involving the “government in a contract or obligation for the payment of money before an appropriation is made unless authorized by law.”
Trump may ask for the funds without violating the Anti-Deficiency Act since the law does not apply to the White House, but officials of the various agencies are not permitted to make any obligation for expenditures that have not yet been appropriated by Congress. Congress would have to appropriate these expenditures to make them permissible.
Again, this law is rarely invoked because of so many loopholes. The White House could try to argue that 31 USC 1341(a)(1)(B) merely prohibits an agency from making obligations for an expenditure before Congress has appropriated the money. Since the funds at the agencies have already been appropriated, Trump could argue that the law does not apply.
But I would read the Anti-Deficiency Act to be spot-on in this circumstance, since the appropriation language for these funds never authorized an expenditure for the wall. This constitutes spending money for a purpose never authorized by law or by the appropriations language.
Just to be clear, though, the Anti-Deficiency Act was designed to prevent agencies from spending money prior to authorization or in excess of authorization. In other words, it is intended to prevent agencies from spending money they do not have.
However, the Act’s emphasis that expenditures must be authorized by Congress strongly indicates that funds not authorized for the wall cannot be spent for that purpose. Allocating an agency’s surplus funds for the wall prior to any authorization by Congress would constitute a violation of 31 USC 1341(a)(1)(B) of the Anti-Deficiency Act.