The Funds Available to Address the National Emergency at Our Border | Eastern North Carolina Now

The current situation at the southern border presents a border security and humanitarian crisis that threatens core national security interests and constitutes a national emergency.

Press Release:

    "The current situation at the southern border presents a border security and humanitarian crisis that threatens core national security interests and constitutes a national emergency."  -  President Donald J. Trump

    LEGAL JUSTIFICATION: President Donald J. Trump is clearly justified in declaring a national emergency and utilizing other statutory authorities to address the crisis at our border.

          •  In declaring a national emergency, a President may invoke any of more than 100 available statutory authorities. President Trump's declaration invoked two:

                 •  10 U.S.C. § 12302 authorizes Department of Defense (DOD) officials to order the Ready Reserve to active duty to address a national emergency.

                 •  10 U.S.C. § 2808 authorizes the Secretary of Defense to direct military construction necessary to support the use of the Armed Forces in connection with a "national emergency... that requires use of the armed forces."

          •  The President reasonably determined that the national emergency at the southern border "require[d] use of the armed forces."

                 •  An emergency that "requires use of the armed forces" means the President has determined that the armed forces are necessary to address the crisis.


                 •  More than 5,000 troops are deployed at the border.

                 •  DOD is now reviewing which emergency military construction projects, such as the building of barriers, may be "necessary to support" the use of the Armed Forces.

                 •  DOD is still in the process of making such determinations, so no funds have yet been authorized for use.

          •  Separate from the national emergency, the President invoked two other statutory authorities to direct needed funds to the border.

                 •  Congress expressly authorized the military to support Federal agencies in blocking drug-smuggling corridors across international boundaries, using 10 U.S.C. § 284(b).

                 •  Under 10 U.S.C. § 284(b)(7), the United States military may construct "fences and road and [install] lighting ... to block drug smuggling corridors across international boundaries of the United States" upon request from the responsible agency.

                 •  DHS has requested that DOD use this counterdrug authority to construct fencing and roads and to install lighting in high-priority drug-smuggling corridors.

                 •  To devote additional resources to such construction, DOD will augment existing counterdrug funds by transferring up to $2.5 billion from other DOD accounts.

                 •  DOD's transfer authority is provided in section 8005 of the FY19 DOD appropriations act.

                 •  In past years, DOD has relied upon its general transfer authority to reallocate up to $4 billion from within the DOD budget.

                 •  Under 31 U.S.C. § 9705(g)(4)(B), the Secretary of the Treasury may provide money from the Treasury Forfeiture Fund to other agencies for use "in connection with the law enforcement activities of any Federal agency."

                 •  Treasury has identified about $601 million that will be made available to DHS for use in law enforcement border security efforts.

    PAST USES OF NATIONAL EMERGENCY DECLARATIONS: Presidents have regularly declared national emergencies under the National Emergencies Act.

          •  Presidents have declared nearly 60 national emergencies since the National Emergencies Act was passed in 1976.

          •  There were 31 ongoing national emergencies when President Trump declared the national emergency at our border, bringing the total number currently in effect to 32.

                 •  These ongoing national emergencies are reviewed every year by the President-and renewed as appropriate.

                 •  In fact, President Obama declared a national emergency to deal with the threat of transnational criminal organizations, including cartels operating on our southern border.

          •  Presidents have regularly issued national emergency declarations to address problems overseas.

          •  President Clinton declared a national emergency in response to the blood diamond trade in Sierra Leone.

                 •  President Obama declared national emergencies related to situations in Somalia, Libya, Yemen, Ukraine, South Sudan, Burundi, and more.

          •  National emergencies have also been used to address problems domestically, such as when President Obama declared a national emergency in response to the swine flu.

          •  Between 2001 and 2013, DOD undertook 18 emergency military construction projects using the same emergency construction authority President Trump has invoked.


    FUNDING SOURCES: President Trump is using funds appropriated by Congress, funds reallocated under statutory authority, and funds available when a national emergency is declared.

          •  Nearly $8.1 billion has been identified as available, including:

                 •  $1.375 billion appropriated by Congress

                 •  $3.1 billion under other statutory authorities

                 •  $3.6 billion in military construction funds available under a national emergency

          •  These funding sources will be used sequentially and as needed, with the $1.375 from appropriated funds used first, then the $3.1 billion from other statutory authorities, then the $3.6 billion from military construction.

          •  Only $3.6 billion of the nearly $8.1 billion is dependent on the President's declaration of a national emergency.

          •  Under the President's non-emergency statutory authority, $3.1 billion is available.

                 •  $601 million from the Treasury Forfeiture Fund will be made available to support border security.

                 •  The Secretary of the Treasury is authorized to use funds in the Treasury Forfeiture Fund not reserved for other purposes to support law enforcement activities.

                 •  The $601 million will be available in two allocations, $242 million available immediately and $359 million from future anticipated forfeitures.

                 •  Up to $2.5 billion will be made available from DOD funds transferred to its FY 2019 Drug Interdiction and Counter-Drug Activities account.

                 •  This construction to support counterdrug activities will be used on land already owned by the Federal Government.

          •  Based on the President's national emergency declaration, DOD is authorized to undertake certain military construction projects using up to $3.6 billion in unobligated military construction funding.

                 •  DOD will ensure that high-priority projects with national security implications remain funded. Family housing projects will remain funded.

                 •  The Administration will ask Congress for new military construction funding for the existing projects affected by this, so that no projects will be canceled-only delayed.


    HOW FUNDS CAN BE USED: These funds will be available to help secure the border and protect the safety and well-being of our country.

          •  The potential projects that could be built using these funds include:

                 •  Constructing new, 18 to 30 foot high steel primary pedestrian barriers in various areas.

                 •  Replacing outdated pedestrian fencing and vehicle barriers with modern, 18 to 30 foot high steel barrier.

                 •  Constructing new secondary barriers to provide a patrol zone in between the secondary and primary barriers.

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