Americans have responded to reports of abysmal conditions at federally-run government migrant detention centers—where many, including children, lack access to basic necessities—by sending them donations of supplies like soap, toothbrushes, diapers, and toys.
So far, those donations have been rejected by the Department of Homeland Security, leaving the public and lawmakers alike angry and scratching their heads as to why. But the agency, which runs many of these detention centers, is now acknowledging that there is little legal basis to justify turning down donations from the public to help improve conditions for migrants.
Former DHS officials have contended in the press that it would be against the law for the government to accept donations of supplies for migrants provided by private citizens due to an obscure law called the Antideficiency Act, which bars federal agencies from using anything that has not been paid for through funds appropriated by Congress.
Unless, of course, the agency is DHS, which could take advantage of a massive loophole provided for them to do just that in existing law.
An appropriations bill signed into law in 2004 authorized the Secretary of Homeland Security to “accept, hold, administer, and utilize gifts and bequests… to facilitate the work of the Department of Homeland Security.” There is also an exception for emergencies involving “the safety of human life.”
In response to questions from The Daily Beast, a DHS spokesperson did not say whether or not the Antideficiency Act prohibits the agency from accepting donated supplies for the benefit of migrants currently held in detention.
“CBP must comply with Federal law and relevant DHS policy in order to receive and manage donations,” said the spokesperson, referencing U.S. Customs and Border Protection, the agency that directly manages detention facilities. “At this time we are coordinating among relevant CBP offices, including our Office of Chief Counsel to determine how we can most efficiently accept and manage donations from the public, in compliance with law and policy.”
A House Democratic aide told The Daily Beast that DHS could easily apply this 2004 statute to the current situation, putting the agency on solid legal ground to accept the boxes of hygiene supplies and toys that charities and private citizens have been ferrying to overcrowded, needy facilities in places like Clint, Texas. “The bigger issue, they’ve told us, isn’t the legal issue here, it’s more the logistical issue,” the aide said.
A House Republican aide echoed concerns about logistics and the capacity of the agency, which just obtained an emergency infusion of $4.6 billion from Congress to handle the situation at the border.
“Processing donations takes manpower,” said the aide. “Employees have to inspect donations, launder clothes, etc., at a time when CBP is already stretched thin.” DHS would not comment on its communications with lawmakers.
To this point, lawmakers from both parties and both sides of the Capitol have pressed the department for an explanation of why donations from the public are going unused. “This is something we need to address in hours and days, not weeks and months,” read a letter to DHS Acting Secretary Kevin McAleenan, sent on June 3 by Rep. Dan Crenshaw (R-TX) and signed by 13 GOP lawmakers and three Democrats.
That group asked DHS to tell them how they could provide resources to help them better process donations. But a spokesperson for Crenshaw said on Monday that they had not yet received a response to their inquiries.
In another letter to McAleenan, Sen. Ted Cruz (R-TX) also urged DHS to “establish and publicize a process for accepting donations from charitable organizations, faith-based organizations, and NGOs to aid individuals in CBP custody.”
In June, a DHS official told reporters that they might use donations — but argued they weren’t necessary. “We are looking at the possibility of using some of those donations going forward,” said the official, according to CNN. “But those items, it's important to note, are available now."
“I think they don’t want to create the idea they’re not capable of taking care of this on their own,” said the House Democratic aide.
