I think it’s important to note the legal and constitutional distinction between ‘budget’ and ‘allocation’.
A budget is mandated in the Constitution to originate in the House, ratified in the Senate and signed into law by the Executive. A ‘budget’ carries with it a mandate that the President spend funds on budget items.
The Omnibus is not a ‘budget’. It is an allocation. As such, the Executive may draw on funds for their legislated purpose. The President may not move the allocations from one purpose to another but may do so within a purpose formatted as an appropriation. For example, the military appropriation for construction of national defense structures can be used to construct a wall along a national border if the such a wall is declared by the President to be necessary to national defense.
Other non-military appropriation in the Omnibus for border structures had allocated funds ($1.6B) for existing fence repair while calling out prohibitions that that money was not to be used for new wall construction.
If Congress had truly wanted to stop the President from constructing any new wall structure, they would have ensured there were clear words that nothing in the Omnibus, not from any allocation whatsoever, could be drawn for new wall construction. The legislators did not expect the President to declare the border wall as a national defense structure and then draw from military appropriations for its construction.
In other words, Pot of Money A is not to be used for any new border wall construction whereas Pot of Money B may be used for any National Defense structures the Executive deems necessary.
And therein lies the card that the President just played.
Of course, the President’s call will be challenged in a democrat selected court, but in appeals which I think will go straight to SCOTUS, the President’s decision will clearly survive based on the language of the Omnibus and the authority of the President.
Now there is one other comeback from the never-do-wells in Congress to play in response to the President’s unexpected actions. Congress could pass an amendment to restrict any and all new construction along the border but there is a problem for them, they’ve just pro forma recessed themselves and the President has announced wall construction begins tomorrow. A court can delay construction, but my sense is the President’s lawyers will be at SCOTUS the next day. Whatever SCOTUS does or doesn’t do, Congress is facing an election and the President’s border wall is solidly popular. We can be assured there will be no amendment from Congress that restricts the President from using the Greencastle, Indiana Army Corps of Engineers to construct the Wall. Hear that Coulter? If not, you need to stop playing boink-a-dink with Moron Maher long enough to say you’re sorry for badmouthing the President. He rolled the Swamp and you missed it.
How could it NOT be declared a national defense structure? These people think it's ornamental?
Brilliant.
YES!....YES!....YES!
THAT’S MY PRESIDENT!!!!!!!!