A fact sheet issued by the White House identifies three distinct statutory bases for making available the additional $6.5 billion. The fact sheet specifies that “these funding sources will be used sequentially and as needed.”
First, according to the fact sheet, $601 million would come from the Department of the Treasury Forfeiture Fund, an account that is fed by money seized by the U.S. government in connection with law enforcement actions or generated by the sale of seized assets. No national emergency declaration is needed to tap these funds. 31 U.S.C. § 9705(g)(4)(B) authorizes the Forfeiture Fund to use the funds for specific purposes outlined in that section.
Second, the fact sheet indicates that $2.5 billion would come from funds authorized pursuant to 10 U.S.C. § 284, which likewise does not depend on a declaration of emergency. This statute authorizes the secretary of defense to “provide support for the counter-drug activities or activities to counter transnational organized crime of any other department or agency of the Federal Government or of any State, local, tribal, or foreign law enforcement agency” for the purposes set forth in the section if requested by another federal agency or state, local or tribal government in support of law enforcement efforts. Those purposes include, among other things, “construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States”
Third, $3.6 billion would be drawn from the Department of Defense military construction budget. 10 U.S.C. § 2808(a). This is the only portion of the funds that requires the declaration of a national emergency.
Additionally, the new spending bill allocated $1.3b for construction, although it dictates exclusions as to where it could be spent, no problem, the first two Executive Actions can fill those gaps.
