Military Construction Funding in the Event of a National Emergency

Summary

The President’s reported consideration of whether to invoke various statutory authorities (including some triggered by a declaration of a national emergency) to direct the Department of Defense (DOD) to construct “a physical barrier” along the U.S.-Mexico border has raised questions about potentially available appropriated funds. This Insight identifies previous military construction projects funded through emergency authorities and unobligated military construction funding balances.

Title 10 U.S.C. Section 2808 is entitled Construction authority in the event of a declaration of war or national emergency and depends upon a “declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act [NEA] (50 U.S.C. 1601 et seq.) that requires use of the armed forces.” A declaration by the President under the NEA must detail the statute under which action will proceed. For discussion of the authorities the President may utilize after declaring a national emergency in accordance with the NEA, see CRS Legal Sidebar LSB10242, Can the Department of Defense Build the Border Wall?, by Jennifer K. Elsea, Edward C. Liu, and Jay B. Sykes.

Previous Instances

Presidents have invoked the NEA twice citing the emergency military construction authority set forth in 10 U.S.C. 2808. During Operation Desert Shield, President George H.W. Bush issued EO 12734 of November 14, 1990. In the aftermath of the September 11, 2001, terrorist attacks President George W. Bush issued Executive Order 13235 of November 16, 2001. In the latter, the president was required and able to renew the authority.

Previous Military Construction Projects

According to DOD information, from 2001 through 2014, the department funded a total of 18 projects under 10 U.S.C. 2808, after the President invoked the NEA, with a combined value of $1.4 billion. With the exception of one project dating from December 2001 related to security measures for weapons of mass destruction at sites in the continental United States, most of the projects took place at overseas locations (see Table 1).

Table 1. Department of Defense Use of Authority Per 10 U.S.C. 2808

(2001-2014)

Date

Component

Location

Amount (in millions of dollars)

Description of Project

11/21/2001

Air Force

To support Operation Enduring Freedom

26.7

Expand aircraft parking ramps and build hangars at two forward operating locations

12/4/2001

Army

Arkansas, Indiana,

Kentucky, Maryland,

Oregon

35.0

Security measures for weapons of mass destruction

11/17/2006

Army

Guantanamo

102.0

Secure courthouse and support facilities

9/18/2008

Army

Bagram, Afghanistan

38.8

Barracks, power line, and road

5/9/2009

Air Force

Afghanistan

41.3

Airfield runway and apron pavement improvements

5/29/2009

Army

Afghanistan, Iraq

136.2

Waste management complex, fuel storage, security improvements, ammo storage, medical facility, and logistics support area

6/2/2010

Air Force

Afghanistan

59.0

Airfield pavement improvements

8/25/2010

Air Force

Qatar, UAE, Kuwait, Afghanistan

129.1

Fuel facilities, passenger and freight terminal, cargo holding area, billeting, network control center, satellite communications facility, maintenance center, electrical substation, special operations forces (SOF) aviation complex, and ramp

8/16/2011

Army

Afghanistan

74.0

Detention facility expansion, airfield pavement improvements, and tanker truck facility

1/13/2012

Air Force

Camp Lemonnier, Djibouti

6.3

Aircraft parking, taxiway, and aircraft shelter

1/30/2012

Air Force

Qatar, Afghanistan, Oman, Kyrgyzstan

141.2

SOF apron, taxiway, communications facility, ammo storage area, and airlift apron

3/5/2012

Army

Parwan, Afghanistan

53.3

Detention housing and dining facility

6/1/2012

Army

Afghanistan

28.0

Logistics hub, security improvements, and waste water treatment plant

6/15/2012

Air Force

Camp Lemonnier, Djibouti

187.0

Combat Aircraft Loading Area (CALA) and billeting

6/30/2012

Army

Afghanistan

86.0

Waste management complex and utility projects

8/20/2012

Air Force

Camp Lemonnier, Djibouti

24.0

Parallel taxiway extension

8/20/2012

Navy

Naval Support Act Bahrain

45.2

Waterfront development

6/14/2013

Navy

Camp Lemonnier, Djibouti

228.0

Task Force Compound

TOTAL

1,441.1

Source: DOD.

Funding

Section 2808 does not appear to cite a cost limitation per a project. However, it specifies as a source of funding certain available military construction funds. Subsection (a) states, “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.”

According to DOD information, the department reported unobligated balances in the military construction and family housing accounts totaling $13.3 billion at the end of FY2018 (see Table 2).

Table 2. Status of Unobligated Balances for Military Construction (MILCON) and Family Housing Titles

(in thousands of dollars, as of September 30, 2018)

Account

Period of Availability

Appropriated Amount

Unobligated Balance

% Unobligated

MILCON

2014/2018

7,969,801

244,377

3%

MILCON

2015/2018

119,946

3,887

3%

MILCON

2015/2019

4,947,617

654,158

13%

MILCON

2016/2020

6,791,551

1,774,080

26%

MILCON

2017/2021

6,797,713

2,821,042

41%

MILCON

2018/2022

9,896,613

6,755,989

68%

Base Realignment and Closure

2,836,102

204,806

7%

NATO Security Investment Program

7,874,381

196,231

2%

Family Housing

2014/2018

229,247

57,598

25%

Family Housing

2015/2019

82,698

11,328

14%

Family Housing

2016/2020

345,528

176,791

51%

Family Housing

2017/2021

319,535

167,082

52%

Family Housing

2018/2022

355,906

323,455

91%

Family Housing

2018/2018

1,127,108

52,147

5%

Family Housing Improvement Fund

4,301,107

18,812

0%

Unaccompanied Housing Improvement Fund

80,332

632

1%

Homeowners Assistance Program

2,923,870

40,083

1%

MILCON Subtotal

47,233,724

12,458,339

26%

Family Housing Subtotal

9,765,331

847,928

9%

Grand Total

56,999,055

13,306,267

23%

Source: The Report of the Department of Defense on Fourth Quarter Fiscal Year 2018 Bid Savings and Unobligated Balances for Military Construction and Family Housing Accounts (Execution as of September 30, 2018).

The figures cited above do not account for unobligated balances resulting from FY2019 appropriations.

The 2019 Energy and Water, Legislative Branch, and Military Construction and Veterans Affairs Appropriations Act (H.R. 5895; P.L. 115-244) appropriated a total of $11.3 billion in military construction budget authority, including $10.3 billion in Title I—Department of Defense (DOD) for the department’s base, or regular, budget, and $921 million in Title IV—Overseas Contingency Operations (OCO). These figures can be found in the funding tables in H.Rept. 115-929, the conference report accompanying the bill. These amounts reflect budget authority—not obligations (or unobligated amounts). Because military construction appropriations are generally available for obligation for up to five years, the department likely has a different amount of unobligated military construction funding than the total appropriated amount for any given fiscal year.

In general, as part of the President’s annual budget submission to Congress, the Office of the Under Secretary of Defense (Comptroller)/Chief Financial Officer publishes a spreadsheet, entitled “Military Construction, Family Housing, and Base Realignment and Closure Program (C-1),” which details funding amounts, facility title, and installation or location for individual military construction projects.

Congressional Notification and Reprogramming

The use of Title 10 Section 2808 requires congressional notification. Subsection (b) states, “When a decision is made to undertake military construction projects authorized by this section, the Secretary of Defense shall notify ... the appropriate committees of Congress of the decision and of the estimated cost of the construction projects, including the cost of any real estate action pertaining to those construction projects.”

Nevertheless, according to DOD regulations the use of Section 2808 does not require a request to Congress for reprogramming (i.e., a change in the application of funds). The DOD Financial Management Regulation (FMR; DOD 7000.14-R), Paragraph 170303, Subsection (A), “Construction in the Event of a Declaration of War or National Emergency,” highlights additional guidance in DOD Directives (DODD) 3025.18 and 4270.5, the latter of which states reprogramming is not required for construction projects under 10 U.S.C. 2808.

Kevin Borden, Nicole Carter, Michelle Christensen, Jennifer Elsea, Michael Garcia, Bruce Lindsay, Edward Liu, and Liana Rosen contributed to this Insight.