In 2006, Congress passed the Secure Fence Act, which directs the Department of Homeland Security to “achieve operational control” of our southern borders. Unfortunately the legislation did not come with an ongoing funding mechanism in place, so funding for the construction of the wall and other means of achieving this control have become the focus of a political debate that has beset every Congress since. Funding is never allocated, yet the law sits on the books, leaving the Department of Homeland Security unable to comply with this legal directive.
The act defines “operational control” as the prevention of all unlawful U.S. entries, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband.
From our perspective, the concept of the wall we’re proposing is analogous to “operational control”. It’s just that ‘fund operational control’ doesn’t have quite the same ring to it. That does not necessarily mean that 100% of the border between the US and Mexico is secured by a fence; it means that the controls are in place to secure that area of the border. If border wall construction is proceeding apace, then the funds to secure the technology to go with it will be there too.
Early on into the process, as we were searching for all the things that could throw this effort off track, we stumbled across a document that helped us understand the process far more clearly. In particular, we had the following questions:
- Can we donate money directly to a particular branch of government, rather than only into the general treasury?
- Can we specify what the money is to be used for, even as we donate it?
- Can the government refuse the money?
In short, yes to all. The first document we found in our search was DHS Directive 112-02: Gifts to the Department of Homeland Security.
It’s short and straight to the point:
A. Authorized agency officials may use statutory authority to accept and utilize gifts to DHS that aid or facilitate DHS’s work.
B. No employee of DHS may solicit gifts or encourage the solicitation of gifts to DHS unless the Secretary or Deputy Secretary approves the solicitation in advance. Nominating or seeking a nomination for an award under an award program does not constitute solicitation.
C. Solicitation or acceptance of a gift must not compromise the integrity of DHS, its programs, operations, or employees
D. Unconditional gifts that will aid and facilitate the work of DHS may be accepted upon approval by the Secretary or delegate (“authorized agency official”). Gifts offered subject to conditions may be accepted if, in the judgment of the concerned acceptance authority, the conditions do not unduly restrict or interfere with the work of DHS and do not attach conditions inconsistent with applicable laws or regulations. Such conditions must be reviewed by the Office of the General Counsel prior to acceptance.
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.
F. Authorized agency officials may, at their discretion, decline a gift. The gift may be declined orally or in writing. The donor may be advised of the reason the gift is being declined. A gift may be declined solely as a matter of DHS discretion, even though acceptance would not be precluded under this policy.
G. Acceptance of a gift may not, in any way, be deemed to be or used as an endorsement of the donor, or the donor’s products, services, activities, or policies. Letters to donors expressing appreciation of a gift are permitted and shall be reviewed by the Office of the General Counsel prior to sending to the donor.
H. DHS may not accept gifts of currency. Donors who offer currency should be advised that gifts may be made to DHS by check or money order payable to the “Department of Homeland Security.”
I. Gifts may not be accepted that:
1. Require the expenditure of appropriated funds that are not available to DHS;
2. Require DHS to adhere to particular requirements as to deposit, investment, or management of funds donated;
3. Require DHS to undertake or engage in activities that are not related to DHS’s mission, programs, or statutory authorities;
4. Reflect unfavorably on the ability of DHS and/or its employees, to carry out their responsibilities or official duties in a fair and objective manner, or compromise or appear to
compromise the integrity of DHS programs or any employee involved in those programs.
5. Gifts from current DHS employees, employees of contractors, or consultants to DHS will not be accepted absent a compelling reason.
J. No employee of DHS may receive gifts to DHS unless specifically delegated such authority by the Secretary
K. No gift can be considered for acceptance or accepted without coordination with the servicing ethics official.
Therefore, it’s specifically legal and acceptable to deliver gifts to the DHS that “aid or facilitate DHS’s work”, and our condition that the funds be used for construction of a border barrier are acceptable because “the conditions do not unduly restrict or interfere with the work of DHS and do not attach conditions inconsistent with applicable laws or regulations”.
*Update September 2018* In Conjunction with the participating Sheriffs, DHS have agreed to receive our donations! We are in the process of scheduling the first delivery with DHS as of October 1. Please check our blog for more updates.