The Department of Defense (DOD) transferred and obligated its fiscal year 2019 appropriations in order to construct fences at the southern border of the United States in response to a request from the Department of Homeland Security (DHS) that DOD provide support for DHS’s counter-drug activities pursuant to DOD’s authority under 10 U.S.C. § 284.

DOD’s transfer of amounts into its Drug Interdiction and Counter-Drug Activities, Defense, account for border fence construction was consistent with DOD’s statutorily enacted transfer authority, and use of these amounts for the purpose of border fence construction was permissible under various statutory provisions.

We also conclude that DHS waivers of legal requirements did not violate a prohibition on use of DOD’s appropriations. Our opinion applies the legal provisions to the facts before us and does not address or draw conclusions regarding border fencing as a policy matter.

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