A total of $17,313,633 had been donated by 284,843 individuals in just 9 days as of late afternoon December 26, to fund part of the border wall. The campaign is a GoFundMe appeal started by U.S. Air Force veteran and triple-amputee Brian Kolfage. His campaign has more information at www.WeFundTheWall.com. A parallel appeal by the American Border Foundation has raised another $191,755 at www.FundTheWall.com.
Attempting to discourage this effort, Democrats and the mainstream news media are arguing that the government is not allowed to accept donations for a specific purpose, Congress would have to vote on it, and — to subtly sow doubts — “it isn’t clear” how this would work. The surge of popular support undercuts the narrative of open borders activists that the border wall is not popular or that support for Trump is eroding.
Criticism from ABC News, Democrats and others that it isn’t clear how this would work doesn’t mean that the organizers have doubts. Brian Kolfage declares that his group has contacts discussing the plans with the Trump Administration. The American Border Foundation claims to have an even more extensive plan worked out.
So can private donations help build Trump’s border wall with Mexico? I will say yes, as an attorney for 21 years, having worked for both Judicial Watch and Larry Klayman’s current Freedom Watch, and worked for five years in the federal government including in budgeting and expenditure issues.
First, let’s start with the clincher: Who would object? Courts state and federal have been waging a war on citizens who want to hold their government to the law. Courts keep raising the bar on who has “standing” to bring a lawsuit in court, closing the door on the courts to the citizens.
So imagine this: Citizens raise, oh, I don’t know, $100 million to donate towards a section of the border wall. The organizers tender payment of the money to the U.S. Department of Homeland Security (or perhaps the Army Corps of Engineers). President Donald Trump says yes, take it. The agency receives the funds. They are not complaining.
Left-wing organizations will rush to the nearest federal judge. What “standing” do they have to object? If I withhold from you $1,000 I owe you, you have been aggrieved. If I give you $1,000 you did not expect or have any right to, how have you been harmed? So if the federal courts follow their own oft-repeated rules on why citizens cannot require the government to follow the law, they will have to find that no one has standing to object to a windfall.
Second, however, it has long been the law that private citizens can donate to the government. In 2012, a billionaire donated $7.5 million to help rebuild the Washington monument after the August 2012 Virginia Earthquake. Most of the legal authority focuses on when a taxpayer can deduct a donation to the U.S. Treasury from his or her income taxes. Most legal discussion involves general donations to reduce the national debt. Believe it or not, the Bureau of the Public Debt gets a lot of private donations every year.
Laws and regulations specific to different departments and agencies provide different rules. For example, the regulations for the U.S. Department of Defense provide procedures unique to helping soldiers and sailors. Some legal authority pertains to donating to medical research, museums, libraries, or schools.
The governing laws and regulations for DHS are silent on the use of gifts. It is neither prohibited nor provided for. There is no general rule for the U.S. Government as a whole. For some departments, gifts are allowed only if they are “unconditional” — that is, donated to the general fund not targeted to any particular activity. Other departments do allow “conditional” gifts for a particular purpose.
DHS explicitly permits such donations at the directive level. DHS Directive Number: 112-02 Issued on February 11, 2008, “Gifts To The Department Of Homeland Security” explicitly states in Section V: “E. DHS may accept gifts to carry out program functions regardless of whether or not appropriated funds are available for that purpose, provided such expenditures are not barred by law or regulation.” (The American Border Foundation deserves the credit for finding this gem.) Note that Congress slightly amended related laws in 2010 after this 2008 Directive, which is generally interpreted to mean that Congress accepted the 2008 Directive, which it left undisturbed.
There are regulations and laws that appear to prohibit donations but those involve situations in which accepting the donation for a specific purpose would thereby obligate the department to draw upon other funds in addition to the donated funds to carry out the project.
[UPDATE: An alert commentator on this article at Free Republic reminds us of President Ronald Reagan’s appeals for students to send in their pennies to restore the Statute of Liberty and Ellis Island. The private donations to save Lady Liberty were so extensive that “they wrote a book about it,” The Statue of Liberty: A Transatlantic Story. A private foundation raised $100 million towards the $230 million budget, of which $63 million came from corporate deals negotiated largely by Lee Iacocca. See Corporations Saved the Statue of Liberty: A new book details how corporate America pitched in big time when Lady Liberty needed a facelift. H/T McGavin999]
Third, Congress has already voted to build a border wall. The Secure Fence Act of 2006 both authorizes and requires the building of physical barriers along the entire Southern border, except where the natural topography creates a physical barrier naturally. The word “fence” should not confuse us. The law requires DHS to determine whatever is necessary to completely prevent any unauthorized entry. So in the 2006 law, “fence” is explicitly defined to mean “whatever it takes.” The law is not limited to a fence, but requires a complete barrier to entry into the United States without permission. It merely leaves it to DHS to decide in each location given the terrain what is appropriate in each section.
Fourth, GoFundMe has elaborate procedures and requirements. The money will not be released without verification that the money will be delivered to the purpose that was promised to donors. GoFundMe is prepared to automatically refund donations if proper release of the funds is not confirmed, since donations are by credit card.
A person raising money on GoFundMe (and similar sites) does not get any of the money until the fund-raising campaign is finished. Brian Kolfage is not getting any of this money now. GoFundMe will verify distribution of the money to it intended purpose before $1 is released.
Therefore, if for some reason the money cannot be used by the Trump Administration to build the wall, dedicated with certainty to the promised purpose, the funds will be returned automatically by GoFundMe by reversing the credit card charges.
[UPDATE: One should also place this in context, when Democrats are insisting they support border security in general (clearly they do not). Democrats call for at most a “virtual wall” of sensors, drones, etc. However, a virtual wall can be turned off on a moment’s notice. A wall cannot be taken down. The reason Democrats would grudgingly accept a virtual wall is because they can shut it off and re-open the border within minutes of a Democrat President being sworn in.]
For the Democrats, everything is at stake. Recall that Democrats have pinned all their hopes on future demographic changes in the U.S. electorate. Democrats live in the world of stereotyping based on race. Therefore, Democrats believe that all Hispanics will vote the same way as a group. All Blacks. Women are being vote-shamed for having their own individual opinions and harassed for not voting for the Democrats.
Democrats are convinced that change is coming. See: Joshua Holland, “Can Democrats Count on Demographic Shifts to Put Them Back in Power?,” The Nation, January 18, 2017. This fundamental transformation of America’s voters is an article of faith among Democrat thinkers. See John B. Judis and Ruy Teixeira, The Emerging Democratic Majority, Scribner Book Company, 2004.
For Democrats, this is a fight they cannot afford to lose And for conservatives it is a fight we must win. Whether or not the United States of America continues to exist is on the line.
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