White House moves forward with wall funding despite lawsuits

The White House is moving forward with plans to shift existing federal funds to pay for construction of a wall on the southern border, a senior administration official and source close to the White House said.

But in the face of several lawsuits challenging Trump’s authority to declare a national emergency to reallocate billions of dollars toward a border wall, the White House does not plan to spend any of the funds that hinge on Trump’s national emergency declaration, a source close to the White House told CNN.

Instead, the White House plans to focus on building new portions of border wall using funds from the Defense Department’s drug interdiction program and Treasury Department’s asset forfeiture fund, which do not rely on the national emergency declaration. Those two sources of funding alone amount to $3.1 billion.

This will allow the White House to begin construction on new border barriers without risking an injunction tied to the national emergency declaration. And at the same time, the White House will be able to put its plans in motion to access the national emergency funds at a later date.

As of now, the plan is to wait until the Supreme Court rules on Trump’s use of the national emergency declaration before using the controversial military construction funds that can only be accessed using the national emergency statute. The White House also knows it cannot possibly spend $8 billion in wall-funding over the next year, and so it plans to access those national emergency funds last.

While the administration has not yet been enjoined from accessing those military construction funds, the White House is bracing for the possibility that a federal court could issue an injunction on accessing funds tied to the national emergency as a result of the lawsuits.

The White House did not immediately respond to CNN’s request for comment.

Sixteen states on Monday filed a lawsuit challenging Trump’s authority to divert federal funds to build a border wall by declaring a national emergency. It is one of several lawsuits challenging Trump’s emergency declaration.

While past presidents have declared national emergencies, they have largely been over non-controversial issues and not as a result of Congress rejecting the President’s request for specific funds.

So why lump the national emergency in with the other executive actions? It comes down to branding, a source close to the White House said.

The President wanted to show his supporters that he was taking drastic action to build the wall in spite of Congress’s refusal to appropriate those funds and the national emergency declaration was one way to do that.

Trump also hopes that his national emergency authority will be validated at the Supreme Court and that he can then tap into those military construction funds following a ruling next year. Announcing the national emergency now allows the government to put the wheels in motion to access those funds at a later date.

Trump on Tuesday told reporters he believes he is on solid legal footing as he responded to news of the lawsuits being filed.

“I think we’ll do very well. We have an absolute right to do that,” Trump said. “We need strong borders. We have to stop drugs and crime and criminals and human trafficking and we have to stop all of those things that a strong wall will stop.”

He added that his administration is already “working with the Army Corps of Engineers” as he moves forward with plans to build additional barriers on the southern border.

Funds from the Treasury Department and Defense Department would be moved to the Army Corps of Engineers to pay for the wall construction, a separate source familiar with the process said.

White House chief of staff Mick Mulvaney said on Friday that it planned to access $2.5 billion from the Pentagon’s drug interdiction program (some of which would be reprogrammed from other accounts), $600 million from Treasury’s asset forfeiture fund and another $3.6 billion from military construction projects.

That’s in addition to Congress appropriating $1.375 billion for additional barriers on the southern border, which Trump considered insufficient.

A senior White House official said White House counsel Pat Cipillone will consult with the Justice Department on how to respond to the lawsuits, but the Justice Department will take the lead in the legal response. The White House anticipated the lawsuits to Trump’s emergency declaration and are bracing for more, according to the official.