Can the Defense Department Build a Border Wall?

If the President were to declare a national emergency in order to justify building a “wall” on the border with Mexico, there would be certain legal authorities that he could invoke to initiate construction operations.

But the scope of those legal authorities is uncertain and would almost certainly trigger litigation to challenge their application, the Congressional Research Service said last week.

“Whether these authorities — individually or in combination — extend to the construction of a border wall would present a reviewing court with several questions of first impression,” CRS said. See Can the Department of Defense Build the Border Wall?CRS Legal Sidebar, January 10, 2019.

On the other hand, the National Emergencies Act has been effectively invoked on two previous occasions to authorize military construction activity overseas (by Presidents George H.W. Bush and George W. Bush), CRS said in another new publication. See Military Construction Funding in the Event of a National EmergencyCRS Insight, updated January 11, 2019.

Some other noteworthy new and updated publications from the Congressional Research Service include the following.

Mexico’s Immigration Control EffortsCRS In Focus, updated January 3, 2019

How a Government Shutdown Affects Government ContractsCRS Legal Sidebar, January 10, 2019

Defense Primer: FY2018 Department of Defense Audit ResultsCRS In Focus, updated January 9, 2019

New CRS Series: Introduction to Financial ServicesCRS Insight, updated January 11, 2019

Federal Grand Jury Secrecy: Legal Principles and Implications for Congressional Oversight, January 10, 2019

U.S. Sanctions on Russia, updated January 11, 2019

Cluster Munitions: Background and Issues for Congress, updated January 7, 2019

U.S.-Proposed Missile Technology Control Regime ChangesCRS In Focus, January 10, 2019

Defense Primers, and More from CRS

“The President does not need the concurrence of either his military advisors or the U.S. Congress to order the launch of nuclear weapons,” the Congressional Research Service reminded readers last month in an updated “defense primer” on “Command and Control of Nuclear Forces.”

The CRS defense primer series consists of two-page introductions to a variety of basic military and intelligence topics. The primers do not generally present information that is altogether new to specialists, but they are a convenient way to increase national security literacy among non-specialist members of Congress and the public.

Recently updated items in the series include the following.

Defense Primer: Commanding U.S. Military Operations, CRS In Focus, updated December 20, 2018

Defense Primer: Intelligence Support to Military Operations, CRS In Focus, updated December 20, 2018

Defense Primer: U.S. Defense Industrial Base, CRS In Focus, updated December 20, 2018

Defense Primer: Procurement, CRS In Focus, updated December 20, 2018

Defense Primer: Information Operations, CRS In Focus, updated December 18, 2018

Defense Primer: Cyberspace Operations, CRS In Focus, updated December 18, 2018

Defense Primer: President’s Constitutional Authority with Regard to the Armed Forces, CRS In Focus, updated December 17, 2018

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Other new and updated reports from the Congressional Research Service include the following.

The Special Counsel Investigation After the Attorney General’s Resignation, CRS Legal Sidebar, January 2, 2019

Government Expenditures on Defense Research and Development by the United States and Other OECD Countries: Fact Sheet, updated December 19, 2018

Executive Branch Ethics and Financial Conflicts of Interest: Disclosure, CRS Legal Sidebar, January 2, 2019

DHS’s Cybersecurity Mission–An Overview, CRS In Focus, updated December 19, 2018

New U.S. Policy Regarding Nuclear Exports to China, CRS In Focus, December 17, 2018

Congress’s Authority to Influence and Control Executive Branch Agencies, updated December 19, 2018

Congressional Oversight of Intelligence, and More from CRS

Noteworthy new and updated reports from the Congressional Research Service include the following.

Congressional Oversight of Intelligence: Background and Selected Options for Further Reform, December 4, 2018

The War Powers Resolution: Concepts and Practice, updated December 11, 2018

U.S. International Food Assistance: An Overview, December 6, 2018

U.S.-Mexico Economic Relations: Trends, Issues, and Implications, updated December 6, 2018

Cryptocurrency: The Economics of Money and Selected Policy Issues, December 7, 2018

Venue: A Legal Analysis of Where a Federal Crime May Be Tried, updated December 6, 2018

Debt and Deficits: Spending, Revenue, and Economic Growth, CRS In Focus, December 4, 2018

U.S. Gun Policy: Framework and Major Issues, CRS In Focus, December 3, 2018

Russian Compliance with the Intermediate Range Nuclear Forces (INF) Treaty: Background and Issues for Congress, updated December 7, 2018

Russia, the Skripal Poisoning, and U.S. Sanctions, CRS In Focus, updated December 4, 2018

Shutdown of the Federal Government: Causes, Processes, and Effects, updated December 10, 2018

US Sanctions on Russia, and More from CRS

The US has imposed several categories of sanctions on Russia in response to malicious or objectionable Russian activity. A new report from the Congressional Research Service provides an overview of US sanction tools and authorities, and their application to the case of Russia. It also discusses the various sanction regimes, their targets, their effectiveness, and the countersanctions that Russia has introduced. See U.S. Sanctions on Russia, November 28, 2018.

Other new and updated products from the Congressional Research Service include the following.

Iran Sanctions, updated November 28, 2018

The “National Security Exception” and the World Trade Organization, CRS Legal Sidebar, November 28, 2018

U.S. Tariff Policy: Overview, CRS In Focus, November 28, 2018

District Court Temporarily Blocks Implementation of Asylum Restrictions on Unlawful Entrants at the Southern Border, CRS Legal Sidebar, November 27, 2018

The Venezuela Regional Migration Crisis, CRS In Focus, November 27, 2018

Brexit at a Pivotal Moment, CRS Insight, November 28, 2018

Revisiting the Doubling Effort: Trends in Federal Funding for Basic Research in the Physical Sciences and Engineering, CRS Insight, November 27, 2018

Administration of the House of Representatives: Actions Taken During a New Congress and Following a Majority Change, CRS In Focus, November 26, 2018

Electing the Speaker of the House of Representatives: Frequently Asked Questions, updated November 26, 2018

Defense Primer: Under Secretary of Defense for Research and Engineering, CRS In Focus, updated November 14, 2018

Defense Primer: RDT&E, CRS In Focus, updated November 13, 2018

Defense Primer: Congress’s Constitutional Authority with Regard to the Armed Forces, CRS In Focus, updated November 13, 2018

Defense Primer: Legal Authorities for the Use of Military Forces, CRS In Focus, updated November 13, 2018

Defense Primers, Costs of War, and More from CRS

Several short introductions to basic aspects of U.S. military policy have recently been updated by the Congressional Research Service. Intended for congressional consumers, they may also be useful to others.

Defense Primer: Organization of U.S. Ground ForcesCRS In Focus, updated November 16, 2018

Defense Primer: Special Operations ForcesCRS In Focus, updated November 16, 2018

Defense Primer: Navigating the NDAACRS In Focus, updated November 16, 2018

Defense Primer: Defense Appropriations ProcessCRS In Focus, updated November 16, 2018

Defense Primer: Department of the Army and Army Command StructureCRS In Focus, updated November 16, 2018

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It is hard even for attentive members of the public to fully comprehend the U.S. military budget.

“The scale of spending alone makes it hard to grasp. Public understanding of the costs of war is further limited by secrecy, faulty accounting, and the deferral of current costs,” I argued recently in a short paper for the Costs of War Project at Brown University. See The Costs of War: Obstacles to Public Understanding, November 14, 2018.

Neta C. Crawford of Brown University estimated the post-9/11 costs of war at $5.9 trillion through FY 2019.

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Other noteworthy new releases from the Congressional Research Service include the following.

The Global Research and Development Landscape and Implications for the Department of Defense, updated November 8, 2018

U.S. Ground Forces Robotics and Autonomous Systems (RAS) and Artificial Intelligence (AI): Considerations for Congress, updated November 20, 2018

United States and Saudi Arabia Energy RelationsCRS In Focus, November 19, 2018

Global Human Rights: Multilateral Bodies & U.S. ParticipationCRS In Focus, updated November 23, 2018

The European Union: Current Challenges and Future Prospects, updated November 15, 2018

Immigration: “Recalcitrant” Countries and the Use of Visa Sanctions to Encourage Cooperation with Alien RemovalsCRS In Focus, November 15, 2018

Infrastructure Investment and the Federal GovernmentCRS In Focus, updated November 19, 2018

Insulin Products and the Cost of Diabetes TreatmentCRS In Focus, November 19, 2018

Quantum Information Science: Applications, Global Research and Development, and Policy Considerations, updated November 19, 2018

What Role Might the Federal Government Play in Law Enforcement Reform?CRS In Focus, updated November 16, 2018

Who Can Serve as Acting Attorney GeneralCRS Legal Sidebar, November 15, 2018

Defense Primers, and More from CRS

Incoming members of Congress face a steep learning curve in trying to understand, let alone master, many diverse areas of public policy such as national defense.

To help facilitate that learning process, the Congressional Research Service has issued a series of “defense primers” that provide a brief introduction to a variety of defense policy topics. Several of them have recently been updated, including these:

Defense Primer: Geography, Strategy, and U.S. Force Design, CRS In Focus, updated November 8, 2018

Defense Primer: Department of the Navy, CRS In Focus, updated November 8, 2018

Defense Primer: Naval Forces, CRS In Focus, updated November 8, 2018

Defense Primer: United States Airpower, CRS In Focus, updated November 7, 2018:

Defense Primer: The United States Air Force, CRS In Focus, updated November 7, 2018

Other new and updated reports from the Congressional Research Service include the following.

Energy and Water Development Appropriations: Nuclear Weapons Activities, updated November 9, 2018

The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law, updated November 6, 2018

The DOD’s JEDI Cloud Program, CRS Insight, updated November 5, 2018

Iran: Efforts to Preserve Economic Benefits of the Nuclear Deal, CRS In Focus, updated November 8, 2018

Iran Sanctions, updated November 6, 2018

Global Trends in HIV/AIDS, CRS In Focus, November 6, 2018

21st Century U.S. Energy Sources: A Primer, updated November 5, 2018

Presidential Disability and the 25th Amendment

Under the 25th amendment to the Constitution, a U.S. President could be declared “disabled” and removed from office against his will by the Vice President acting together with a majority of the Cabinet.

A new report from the Congressional Research Service details the background and provisions of the amendment.

Proponents of the 25th amendment insisted that it was “not intended to facilitate the removal of an unpopular or failed President,” and that safeguards were in place to prevent abuse.

While Presidents have voluntarily and temporarily declared themselves disabled on three occasions — in 1985, 2002 and 2007 — the provisions for involuntary removal from office have never been implemented. See Presidential Disability Under the Twenty-Fifth Amendment: Constitutional Provisions and Perspectives for CongressNovember 5, 2018.

Other new and updated reports from the Congressional Research Service include the following.

The Citizenship Clause and “Birthright Citizenship”: A Brief Legal OverviewCRS Legal Sidebar, November 1, 2018

Internships, Fellowships, and Other Work Experience Opportunities in the Federal Government, updated November 1, 2018

U.S. Trade Policy Functions: Who Does What?CRS In Focus, November 1, 2018

U.S. Foreign Aid to the Palestinians, updated November 2, 2018

The 2020 Decennial Census: Overview and IssuesCRS In Focus, October 31, 2018

Implementation of Treasury’s New Customer Due Diligence Rule: A Step Toward Beneficial Ownership Transparency?CRS In Focus, October 31, 2018

U.S. Ground Forces Robotics and Autonomous Systems (RAS) and Artificial Intelligence (AI): Considerations for Congress, November 1, 2018

U.S. Curtails Asylum for Refugees Fleeing Gang Violence

In the recent past, refugees who were fleeing gang or domestic violence in their home countries were able to present a claim for asylum in the United States on that basis. Though such claims were not always accepted, they could at least be adjudicated.

But in June of this year, Attorney General Jeff Sessions ruled that fear of gang and domestic violence would no longer be considered grounds for asylum in the U.S.

“The asylum statute does not provide redress for all misfortune,” the Attorney General wrote.

He held that violence perpetrated by non-governmental actors would no longer justify consideration of an asylum application. The decision was recounted in detail by the Congressional Research Service in a new publication. See Asylum and Related Protections for Aliens Who Fear Gang and Domestic ViolenceCRS Legal Sidebar, October 25, 2018.

Other new and updated reports from the Congressional Research Service include the following.

Honduras: Background and U.S. Relations, updated October 24, 2018

Protection of Executive Branch OfficialsCRS In Focus, updated October 25, 2018

U.S. Secret Service Protection of Persons and FacilitiesCRS In Focus, October 25, 2018

Defense Primer: Personnel Tempo (PERSTEMPO)CRS In Focus, October 23, 2018

Iran and Israel: Tension Over SyriaCRS In Focus, updated October 24, 2018

U.S.-Japan RelationsCRS In Focus, updated October 23, 2018

U.S.-India Trade RelationsCRS In Focus, updated October 24, 2018

Morocco: Background and U.S. Relations, October 26, 2018

What Legal Obligations do Internet Companies Have to Prevent and Respond to a Data Breach?CRS Legal Sidebar, October 25, 2018

Arms Sales: Congressional Review, and More from CRS

New and updated reports from the Congressional Research Service include the following.

Arms Sales: Congressional Review Process, updated October 22, 2018

Congress Considers Possible Responses to the Killing of a Saudi JournalistCRS Insight, updated October 22, 2018

The United States and the “World Court”CRS Legal Sidebar, October 17, 2018

The Global Compact on Migration (GCM) and U.S. PolicyCRS In Focus, October 16, 2018

U.S.-Japan Announce New Limited Trade NegotiationsCRS Insight, updated October 17, 2018

China’s Status as a Nonmarket Economy (NME)CRS In Focus, updated October 22, 2018

China’s Currency PolicyCRS In Focus, updated October 22, 2018

The National Counterintelligence and Security Center (NCSC): An OverviewCRS In Focus, October 18, 2018

Intelligence Community Whistleblower Protections: In Brief, updated October 18, 2018

Democracy in Decline?

Democracy as a political system has not advanced around the world in the past decade and by some measures it has actually declined, a new report from the Congressional Research Service observes.

The obstacles are not all located abroad. Unlike its predecessors, the Trump Administration does not include democracy promotion as part of its national security strategy, CRS noted. And for the first time last year, the Economist Intelligence Unit categorized the United States as a “flawed democracy.”

See Global Trends in Democracy: Background, U.S. Policy, and Issues for Congress, October 17, 2018.

Other new and updated reports from the Congressional Research Service include the following.

FY2019 National Defense Authorization Act: Selected Military Personnel Issues, October 16, 2018

The Peace Corps: Current Issues, updated October 12, 2018

NIH Funding: FY1994-FY2019, updated October 15, 2018

Congressionally Directed Medical Research Programs Funding for FY2019, CRS In Focus, updated October 15, 2018