By Ariel Scotti / February 15, 2019

The National Emergency Statute that Could Give Trump Power to Build Wall

The motion would enable him to authorize a "military construction project."

Scott Free
President Trump's Twitter blunder is news yet again. (Olivier Douliery - Pool/Getty Images)

President Trump intends to declare a national emergency over his U.S.-Mexico border wall — a move, according to the White House, that could allow him to circumvent Congress and unlock money to build it.

Trump has been teasing the possibility of declaring a national emergency for several weeks as a means of cash, regardless of the spending bill lawmakers agreed on this week. The deal provided some capital for the wall but not the $5.7 billion Trump had requested. A national emergency could make up the difference but, according to CNN, that’s largely based on which statutes Trump evokes.

A national emergency allows Trump to unlock certain funds provided under statutes previously passed by Congress. A draft proclamation reviewed by CNN last month cited Title 10 of the U.S. Code, which paves the way for Trump to dip into a stash of Pentagon funds that are earmarked but have no official documentation for spending that money.
That would give him authority to pull from military construction funds and civil works projects, like infrastructure repair projects, CNN reported. Aides say Trump would need to tell Congress where he decides to pull money from but he doesn’t need their permission to do it.
If he were to invoke Section 2808, the armed forces would have to get involved and, the “Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces.”
Congressional aides also told CNN that “there will be legitimate questions about whether building a fence along the border” would be in support of the armed forces, something required when using military construction funds.

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