The President reportedly is contemplating declaring there to be a “national emergency” at our southern border, and directing the Department of Defense (DoD) to finance the construction of a wall or other structure.

Without attempting to answer the question whether there is in fact a “national emergency” on our southern border that could be addressed by the construction of a wall or other structure, I note that the declaration of an emergency is like crying wolf. When there is a wolf, crying wolf is essential to mobilize protective action, but the cry of “wolf” when there is no wolf erodes the credibility of the crier. When that person is the President of the United States, the perception that he plays fast and loose with the determination that there is a national emergency risks erosion of the substantial deference that courts have provided such determinations and it risks giving rise to a congressional effort to constrain the President’s discretion. Crying “national emergency” when there is only a weak basis to do so risks permanent damage to the ability of this and future presidents to defend the Nation, and for at least this reason no president should declare there to be a national emergency lightly. (Former National Counterterrorism Center director Nick Rasmussen offered a dim assessment on Just Security of whether there is evidence to support the finding of a border crisis.)

The declaration of a national emergency does not make our Constitution or our laws disappear. Under the Constitution, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law ….” Art. I, Sec. 9, Cl. 7. Under title 10, § 2802(a), the “Secretary of Defense and the Secretaries of the military departments may carry out such military construction projects, land acquisitions, and defense access road projects … as are authorized by law.” In general, the authorizations are quite specific, with specific amounts authorized for specific projects referred to in Defense Authorization Acts, and appropriations for military construction are made only for those projects specifically approved by the Congress — but there are a few exceptions to this general rule.  One such exception is 10 U.S.C. § 2808, which creates a limited exception in the case of national emergencies declared by the President, and — as noted by Sam Berger in his post— it seems likely that the President is contemplating relying on §2808 to justify tapping into DoD appropriations to build a portion of his wall.

The critical language of § 2808 is in subsection (a):

In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C. §§ 1601 et seq.) that requires use of the armed forces, 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. Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated.

It is not enough that there be a “national emergency;” that national emergency must be one that “requires use of the armed forces,” and the military construction projects that may be authorized are only ones “necessary to support such use of the armed forces.” Prototypical projects are airfields necessary to support U.S. forces deployed to defend against invading forces, such as was the case with the Iraqi invasion of Kuwait. There, there was a national emergency requiring the use of the U.S. armed forces declared by the President, and construction projects were necessary to support such use.

Even accepting for the sake of argument that there is a national emergency on our southern border, is that emergency one that “requires the use of the armed forces” and if so, is the construction of a wall “necessary to support such use of the armed forces”? These are the questions that the President and his lawyers, and the Acting Secretary of Defense and his lawyers, will have to address. The last clause is not a throw-away line — the Anti-Deficiency Act, 31 U.S.C. § 1341, makes it illegal for any government officer or employee to “make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation ….” There is no money in an appropriation or fund for the construction of a border wall by the Department of Defense unless such expenditure is authorized by § 2808, or another one of the very limited exceptions to the requirement for a specific appropriation. Violation of this provision of § 1341 is a criminal offense, punishable by a fine of up to $250,000, or imprisonment for up to 2 years. 18 U.S.C. § 3571. Accepting a presidential determination that there is a “national emergency” and that that emergency “requires the use of the armed forces” would probably not expose any DoD employee to substantial risk of criminal liability — but it is plausible that a new Administration and the courts would hold DoD officials accountable for their own determination of whether expenditures on a border wall would be “necessary to support such use of the armed forces.” The Acting Secretary and even some subordinate officials should carefully weigh their responsibilities under the law, and their potential criminal exposure, before proceeding to obligate funds appropriated to DoD on any border wall, even if the President should declare a national emergency and invoke § 2808.

Image: Border fence under construction near New Mexico’s Highway 9, near Santa Teresa on December 23, 2018. Photo by PAUL RATJE/AFP/Getty Images.