DOD’s military construction budget sidestepped the prospect of being used to fund a border wall for the time being, after President Trump prior to addressing the nation Tuesday night decided against declaring a national emergency as a way to obtain funding for the barrier absent congressional approval. But with no clear path for ending the partial government shutdown, Trump may revisit the possibility of using his emergency powers to draw on milcon funds in the coming days.
If the president opts to declare a national emergency, he likely would use 10 U.S.C. Sec. 2808, which gives the defense secretary the authority to undertake construction projects “not otherwise authorized by law” to support any troops deployed in a national emergency requiring the use of the armed forces. The statute would allow DOD to repurpose unobligated funds allocated for milcon or family housing projects. The department has about $10 billion left in unobligated funds for construction in the fiscal 2019 budget, in addition to about $13 billion that has rolled over from previous years, a congressional aide told the Washington Post. Defense officials would need to divert funds for the border wall from the milcon projects to which they were originally allocated.
A decision by the president to rely on section 2808 could prompt legal challenges over whether the wall is a construction project necessary to support use of the armed forces.
Ahead of Trump’s televised remarks, House Armed Services ranking member Mac Thornberry (R-Texas) told reporters he was opposed to using milcon funding for a border wall. “Seems to me we ought to fund border security needs on their own and not be taking it from other accounts,” Thornberry said, reported Defense News. Committee Chairman Adam Smith (D-Wash.) previously condemned the prospect of diverting milcon dollars after Trump on Friday broached the option of declaring a national emergency.
Army photo by 2nd Lt. Corey Maisch