Fact Sheet - The Funds Available to Address the National Emergency at Our Border

"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."
  • 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.
  • 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.
    • 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.
      • 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.

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