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Congressional ______
*Research Service
inforrng the egislative debate since 1914_________________
Diverting Military Construction Funds
During a National Emergency: Legal
Framework
March 11, 2025
On January 20, 2025, President Trump declared a national emergency pursuant to the National
Emergency Act (NEA) with respect to the U.S. southern border and declared a national energy emergency
under the same authority. In both cases, the President invoked the national emergency standby authority
for shifting military construction funding, 10 U.S.C. § 2808 (Section 2808), to address these situations.
Section 2808 permits the diversion of military construction funds appropriated for specific projects, up to
a capped amount, in the event of a declaration of war or the declaration by the President of a national
emergency in accordance with the [NEA] that requires use of the armed forces. This provision allows the
Secretary of Defense to undertake military construction projects, not otherwise authorized by law that
are necessary to support such use of the armed forces. Under the statute, such projects may be initiated
but only within the total amount of funds that have been appropriated for military construction.
This Sidebar provides a brief overview of the NEA, lists the parameters of Section 2808, describes the
two current national emergencies that invoke this military construction authority, and analyzes the legal
precedent concerning the use of such authority. The Sidebar concludes with considerations for Congress.
The National Emergencies Act
Congress enacted the NEA in 1976 to pare back the President's emergency authorities and end the
perceived continuous state of emergency, which had previously unlocked more than 470 emergency
authorities. Specifically, the NEA established a framework for presidential declarations of national
emergencies intended to provide enhanced congressional oversight and prevent emergency declarations
from continuing in perpetuity. To accomplish these goals, the NEA terminated all then-existing
presidentially declared emergencies and established procedures for future declarations of national
emergencies, requiring the following:
The President specifies which statutory emergency authorities he intends to invoke upon
a declaration of a national emergency;
Congressional Research Service
https://crsreports.congress.gov
LSB11278
CRS Legal Sidebar
Prepared for Members and
Committees of Congress](ViewImageLocal?handle=hein.crs/dvgmtycnf0001&div=1&collection=&method=preview&ext=.png&size=3)
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