Fact Sheet: National Emergencies, Military Construction Authority and the Border Barrier

It is not clear whether President Trump plans to declare a national emergency in order to build a physical barrier along our border with Mexico, in order to protect Americans from illegal aliens, drug traffickers, gun runners, human smugglers and other assorted criminal border jumpers.

The mainstream media has repeatedly asserted that the president does not have the authority to declare a border emergency and take the action necessary to defend the American public.

However, the media pundits would appear to be mistaken. Below, FAIR sets out the facts on the National Emergencies Act and related statutory provisions that would enable the president to accomplish what congress refuses to – place the interests of law-abiding Americans above those of law-breaking foreign nationals.

  • 1976 National Emergencies Act (NEA) 50 U.S.C. §§ 1601-1651: This legislation specifies the manner in which the president may declare a national emergency. It also gives congress the authority to terminate a national emergency by joint resolution of both the House of Representatives and the Senate.[1]
    • 58 national emergencies have been declared since the act was signed into law by President Gerald Ford.[2]
    • 31 of those national emergencies remain in effect.[3]
    • An emergency declaration pursuant to the NEA does not provide any specific emergency authority on its own. Rather, it allows the president to exercise emergency authorities set forth in other statutes.[4]
      • There are currently 123 distinct statutes granting the president emergency authority to respond to a wide variety of situations.[5]
        • None of those statutes explicitly reference immigration. However, many of them would allow the present to implement an emergency response to migration crises involving threats to national security, public safety or public health.
      • As part of the emergency declaration process the president must specify which emergency authority he is invoking.
    • The statutes the president is most likely to invoke, upon declaring an immigration-related national emergency, are:
      • 10 U.S. Code § 2808 – Construction Authority in the Event of A Declaration of War or National Emergency: This statute provides that, upon the President’s declaration of a national emergency, “that requires use of the armed forces,” the Secretary of Defense may “without regard to any other provision of law . . .undertake military construction projects . . . not otherwise authorized by law that are necessary to support such use of the armed forces.”[6]
      • 33 U.S.C. § 2293 – Reprogramming During National Emergencies: This legislation authorizes the Secretary of the Army to terminate or defer Army civil works projects that are “not essential to the national defense” upon the declaration of a national emergency. The Secretary of the Army can then use the funds otherwise allocated to those projects for “authorized civil works, military construction, and civil defense projects that are essential to the national defense.”[7]
  • According to the Congressional Research Service there are also two statutes which may allow the president to begin construction on a border wall without declaring a national emergency or obtaining congressional authorization:
    • 10 U.S.C. § 2803 – Emergency Construction: This legislation provides that the Secretary of Defense “may carry out a military construction project not otherwise authorized by law” after determining the following: (1) “the project is vital to the national security or to the protection of health, safety, or the quality of the environment,” and (2) “the requirement for the project is so urgent that” deferring the project “would be inconsistent with national security or the protection of health, safety, or environmental quality.”[8]
    • 10 U.S.C. § 284 – Support for Counterdrug Activities and Activities to Counter Transnational Organized Crime: This legislation provides that the Secretary of Defense “may provide support for the counter drug activities or activities to counter transnational organized crime” of any law enforcement agency, including through the “[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.”[9]Should the president choose to declare an immigration-related national emergency and invoke his powers under one of the aforementioned statutes, he is sure to be challenged in court – most likely in the radical Ninth Federal Circuit – by organizations like the American Civil Liberties Union and its network of open-borders, pro-illegal-alien agitators.However, outside the Ninth Circuit, he is likely to prevail. Many prior presidents have declared national emergencies and invoked extraordinary powers in response to “crises” that were significantly less threatening than the near failure of our southern border.For now, those of us who are concerned about the integrity of America’s borders can only wait, watch and hope that our elected leaders will do the right thing and put the interests of everyday Americans above those of un-vetted border-jumpers who may present a significant threat to our country.

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Footnotes and endnotes

[1]1976 National Emergencies Act (NEA) 50 U.S.C. §§ 1601-

[2]Kendall Heath, “Here’s a List of the 31 National Emergencies that Have Been in Effect for Years,” ABC News, January 10, 2019, 

[3]Ibid.

[4]Association of State and Territorial Health Officials, Emergency Authority and Immunity Toolkit, accessed February 6, 2019, 

[5]Brennan Center for Justice, A Guide to Emergency Powers and Their Use, December 5, 2018, 

[6]Jennifer K. Elsea, Edward C. Liu, Jay B. Sykes, “Can the Department of Defense Build the Border Wall,” Congressional Research Service, January 10, 2019, p.3, 

[7]Ibid at p. 5.

[8]Ibid at p. 5.

[9]Ibid at p. 5.

1 reply
  1. Gene Sweeney
    Gene Sweeney says:

    Greetings !
    God raised up a powerful leader to restore the nation. And the man God chose was neither a politician nor a priest. Instead, God chose a builder whose name was Nehemiah.
    “And the first step of rebuilding the nation was the building of a great wall. God instructed Nehemiah to build a wall around Jerusalem to protect its citizens from enemy attack. You see, God is NOT against building walls!”
    One scholar, Lester Grabbe, describes Nehemiah in mixed terms: “A man of determination and perseverance with a clear vision of what he wanted to accomplish, he was also egotistical… narrow-minded… and had an unsurpassed ability to alienate most of those with whom he worked.”

    Btw, the meaning of Nehemiah is “comforter”

    Respectfully,
    Gene Sweeney
    US Expatriate Living in Costa Rica
    Cum Deo ad Finem

    Reply

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