The President’s Statutory Power to Build the Wall

In the next few weeks, statutory interpretation is going to be the talk of the town. President Trump’s emergency declaration, though it has all the trappings of a constitutional crisis and king-like assertions of power, is really nothing more than a nice little question about the meaning of statutes. Congress passed a statute that allows the President to declare a “national emergency.” Once the President makes that declaration, he can then invoke other statutes (also passed by Congress) that give the President specific powers otherwise unavailable without the declaration.

“Walls work.” –President Trump

For the President’s wall, that statute is 10 U.S.C. § 2808, which gives the Secretary of Defense the power to “undertake military construction projects” after the President declares a national emergency:

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 . . . that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects . . . not otherwise authorized by law that are necessary to support such use of the armed forces.

And there you have it, right there in the text written by Congress: The President can start building things “without regard to any other provision of law.” It’s statutes all the way down.

But the statutory scheme contains a few textual stumbling blocks for the President, places where the courts might step in and say that he’s exceeded the authority granted by Congress.

First, the courts might say that this isn’t really an emergency. Why did the President wait so long if this wall is so urgent? And goodness, he even said he didn’t need to build the wall via emergency powers. It’s obvious!

Maybe. But don’t get your hopes up. In my view, the courts are unlikely invalidate the declaration on that basis. For one thing, the National Emergencies Act doesn’t define “emergency,” so the courts wouldn’t have a textual basis to say the President’s assessment was wrong. The question would just be whether the judges’ policy assessment matches up with the President’s. That’s not something courts generally like to do. For another thing, courts tend to defer to the President on these questions of national security. So despite the President’s best efforts at shooting himself in the foot, this “emergency” issue probably isn’t going to bring down the wall.

Second, there’s a more subtle argument that David French makes in this thought-provoking post. French focuses on the language of § 2808 that grants the President emergency powers. The statute only grants those powers when the emergency “requires use of the armed forces.” Assuming that the President has the power to declare an emergency for the situation at the southern border, French doubts that the emergency requires the armed forces:

The declaration doesn’t even try to argue that there is a precise, unique challenge that only the military can counter—such as a national disaster that would require the use of the military’s unrivaled heavy-lift capabilities or its immediate access to manpower.

Therefore, in French’s view, the President can’t properly invoke the emergency construction powers of § 2808. Those powers are not made available whenever the President declares a national emergency; rather, they only arise for certain kinds of emergencies — emergencies that require the armed forces.

I see the textual appeal of French’s argument. And as a political and common-sense matter, perhaps he’s right. I’m no military expert. But I would be surprised if the courts mixed themselves up in the question of whether an emergency does or does not require use of the armed forces. French derides the President’s argument: “The message is clear — the military is ‘required’ simply because he says it is required.” I suspect, however, that the assertion might be enough. This is again an area where the courts will defer to the Commander in Chief.

Third, French has a back-up argument that is extremely damaging to the President’s case. I think it might be the best argument I’ve heard against the President’s emergency declaration. I don’t know why he saved it for last! [Why are you saving it for last? –ed. I’m not a good writer.]

Here it is: Even in a properly declared national emergency, and even if the emergency requires use of the armed forces, § 2808 doesn’t give the President the power to just build whatever he wants. The statute gives the President the power to “undertake military construction projects.”  And unlike the term “emergency,” the statute actually tells us what those projects are. The term “military construction projects” has a definition.

French does a great job walking through the statutory text. Section 2801 provides the defintions:

(a) The term “military construction” as used in this chapter or any other provision of law includes any construction, development, conversion, or extension of any kind carried out with respect to a military installation, whether to satisfy temporary or permanent requirements, or any acquisition of land or construction of a defense access road . . . .

10 U.S.C. § 2801(a) (emphasis added).

Now, we could have a debate about the last antecedent rule and whether the phrase “with respect to a military installation” applies to the entire series, or whether it just applies to an “extension of any kind,” since there’s no comma between qualifying phrase and the last antecedent. But how about we don’t do that. From the context, it seems clear to me that “any construction, development, conversion” or whatever else all needs to relate to a military installation.

The statute defines “military installation” as “a base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department.” 10 U.S.C. § 2801(c)(4). As French points out, “[e]ach of the precisely described forms of installation represents facilities that support the troops. Under basic rules of statutory construction, the “other activity” must also fulfill that same purpose.”

But wait, there’s more. And here’s where I’m going a bit beyond what French discussed. Section 2808 doesn’t just give the President the power to do “military construction.” The § 2808 power applies to “military construction projects.” 10 U.S.C. § 2808 (emphasis added). That phrase is also used (though not defined) in section 2801:

(b) A military construction project includes all military construction work, or any contribution authorized by this chapter, necessary to produce a complete and usable facility or a complete and usable improvement to an existing facility (or to produce such portion of a complete and usable facility or improvement as is specifically authorized by law).

The statutory purpose for these construction projects is the production of complete and usable facilities. And the statute tells us what a facility is: “a building, structure, or other improvement to real property.” 10 U.S.C. § 2801(c)(2).

Now, could a border wall be a “structure” or an “improvement to real property”? Maybe in some abstract sense, sure. But a “military construction project” must involve “military construction,” which means the terms must be read together. More generally, none of these definitions can be read in isolation; they need to be read with the entire statutory scheme in mind.

The core of the entire scheme is the idea of a “military installation,” which is some kind of large overarching area: “a base, camp, post, station, yard, center, or other activity.” In other words, the installation is made up of many different buildings or other stuff that needs to get built.

“Military construction,” therefore, is construction carried out in connection with something on that installation. That “something” would be a “facility” related to the installation, since the point of the “military construction project” is to produce a complete facility or to improve an existing facility. Since that “facility” needs to have some relationship to the installation, the definition of “facility” is best read as “a building, structure, or other improvement to real property” in connection with a military installation. So, a wall that separates a military vehicle storage yard from a golf course? Sure! A wall that separates the United States from Mexico along the entire southern border? Probably not.

Anyway, that’s all I’ve got for the text. But if you’re like Justice Kagan and you want some extra icing on a cake already frosted, I tracked down some legislative history for you.

Section 2801, the section with all the definitions, was passed back in 1982 as part of Public Law 97-214, the Military Construction Codification Act. The law had three subchapters: (1) military construction, (2) military family housing, and (3) administration of military construction and military family housing. The current controversy just involves that first subchapter, which included  §§ 2801-2808.

That first version of the law had basically the same relevant terms as the current statute. It wasn’t controversial. According to the House Bill Report from the Armed Services Committee: “The bill is essentially a codification of existing law to make it more readily available for future reference. For the most part, current policy and procedures have simply been incorporated in the new format.”

The Bill Report makes a similar point with respect to the definitions found in § 2801: “This is a compilation section that sets forth in one place the scope of military construction, and defines a military construction project and other terms used in the chapter. It is derived from accepted definitions, programming practices and construction execution procedures that have evolved from managing annual military construction authorization acts from project programming to construction completion.”

So what were those prior practices the new law sought to codify? I located some annual construction authorization acts from before Congress passed the Codification Act, just to see the kinds of projects Congress had included. Based on my quick review, it seems like every one of the authorizations is related to some sort of base or training camp or school or other military-related facility. Here’s an example from Public Law 96-418:

Fort Bragg, North Carolina, $16,350,000.
Fort Campbell, Kentucky, $14,200,000.
Fort Carson, Colorado, $129,960,000.
Fort Devens, Massachusetts, $1,000,000.
Fort Drum, New York, $5,900,000.
Fort Gillem, Georgia, $2,600,000.
Fort Hood, Texas, $24,420,000.
Fort Hunter-Liggett, California, $5,100,000.
Fort Lewis, Washington, $16,000,000.
Fort Ord, California, $4,700,000.
Fort Polk, Louisiana, $14,800,000.
Fort Riley, Kansas, $890,000.
Fort Sam Houston, Texas, $3,750,000.
Fort Stewart/Hunter Army Air Field, Georgia, $31,700,000.
Presidio of San Francisco, California, $750,000.

Here, you can read them in full yourself:
Public Law 95-356 (Repealed)
Public Law 96-418 (Repealed)

When Congress said § 2801 was just supposed to codify “accepted definitions, programming practices and construction execution procedures,” this sort of thing seems to be what Congress meant.

One final point on § 2808, the section that provides for extra authority in cases of national emergency: That section originated in a different law, Public Law 97-99, which was then incorporated into the Military Construction Codification Act. So the legislative history of the Act itself doesn’t include much discussion of § 2808. But the House Bill Report on original law does have an interesting tidbit. Here is the report’s discussion of section 903, which later became § 2808:

Section 903 . . . provide[s] a construction authority in the event of a declaration of war or national emergency.

The Department of Defense conducted major mobilization exercises in 1978 and in 1980 which surfaced a need for authority to immediately restructure construction priorities. While it is impossible to provide in advance for all conceivable emergency situations, contingencies could develop ranging from relocation of forces to meet geographical threats to continuity of efforts after a direct attack on the United States during which the Congress may be unable to convene. The committee believes that this authority will fill a gap that now exists with respect to restructuring construction priorities in the event of a declaration of war or national emergency.

House Committee Report 97-44

Determining the relevance of those exercises in 1978 and 1980 is left as an exercise for the reader.

So that’s it. After a quick look through the statutes and the legislative history, I think the President has an uphill battle based on the language of § 2808 and § 2801. A contextual reading of those provisions does, as David French argues, seem to substantially limit the President’s power. And the legislative history, well… it’s not much. But it doesn’t seem to contain any support for a broader reading of § 2801, at least not that I could find.

Anyway, I imagine this will be an interesting discussion in the weeks (and months?) to come.

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