Military Construction Funding in the Event of
a National Emergency
Michael J. Vassalotti
Section Research Manager
Brendan W. McGarry
Analyst in US Defense Budget
Updated January 11, 2019
The President’s reported consideration of whether to invoke various statutory authorities (including some
triggered by a declaration of a national emergency) to direct the Department of Defense (DOD) to
construct “a physical barrier” along the U.S.-Mexico border has raised questions about potentially
available appropriated funds. This Insight identifies previous military construction projects funded
through emergency authorities and unobligated military construction funding balances.
Title 10 U.S.C. Section 2808 is entitled Construction authority in the event of a declaration of war or
national emergency and depends upon a “declaration of war or the declaration by the President of a
national emergency in accordance with the National Emergencies Act [NEA] (50 U.S.C. 1601 et seq.) that
requires use of the armed forces.” A declaration by the President under the NEA must detail the statute
under which action will proceed. For discussion of the authorities the President may utilize after declaring
a national emergency in accordance with the NEA, see CRS Legal Sidebar LSB10242, Can the
Department of Defense Build the Border Wall?, by Jennifer K. Elsea, Edward C. Liu, and Jay B. Sykes.
Previous Instances
Presidents have invoked the NEA twice citing the emergency military construction authority set forth in
10 U.S.C. 2808. During Operation Desert Shield, President George H.W. Bush issued EO 12734 of
November 14, 1990. In the aftermath of the September 11, 2001, terrorist attacks President George W.
Bush issued Executive Order 13235 of November 16, 2001. In the latter, the president was required and
able to renew the authority.
