Can the Department of Defense Build the
Border Wall?
Jennifer K. Elsea
Legislative Attorney
Edward C. Liu
Legislative Attorney
Jay B. Sykes
Legislative Attorney
February 18, 2019
UPDATE: On February 15, 2019, President Trump issued a proclamation declaring a national
emergency at the southern border of the United States, and invoking, among other authorities, the
military construction authority provided in 10 U.S.C. § 2808. At the same time, the White House released
a statement identifying additional funds that would be made available to build the border wall under 10
U.S.C. § 284. The Army Corps of Engineers reprogramming authority at 33 U.S.C. § 2293 was not
invoked as part of this declaration.
Following the President’s declaration of a national emergency, Public Citizen and a collection of state
attorneys general filed suits in federal district courts seeking injunctions prohibiting the use of federal
funds to construct a border wall, beyond the amounts appropriated by Congress for such purposes.
The text of the original post from January 10, 2019, includes a discussion of these three authorities and
follows below.
According to multiple reports, President Trump may be contemplating declaring a national emergency in
order to fund the construction of a physical barrier along the southern border with Mexico. The funding
for such construction has been the focal point of the partial government shutdown that began on
December 22, as Congress has thus far refused the President’s demand for $5.7 billion in funding for the
