The Pentagon revealed just how President Donald Trump’s national emergency declaration enables the Department of Defense to secure our borders and illustrates just how little the restrictions in the funding bill actually mean.
“The president has declared a national emergency on the southern border,” the Defense Department said Friday in a statement. “The president invoked sections 12302, 284(b)(7), and 2808 of Title 10, U.S. Code, and requires the use of the armed forces to respond to this emergency through support to the Department of Homeland Security (DHS) in its efforts to secure the southern border.”
Each of the listed sections brings DoD resources to bear on the crisis at the southern border:
10 U.S.C., Section 12302 (Activation of the Ready Reserve) authorizes involuntary activation of the Ready Reserve, which includes members who, when mobilized, perform a federal mission at the direction of the secretary of defense. This allows the Secretary of Defense to activate military members currently on inactive duty in the Ready Reserve (Inactive Ready Reserve) to be activated should he see fit.
10 U.S.C., Section 284(b)(7) (Counterdrug Support) authorizes DOD to support the counterdrug activities of other federal agencies, including DHS, with the construction of roads, fences, and lighting to block drug smuggling corridors across international boundaries. DOD will review and respond appropriately to any request for assistance received from DHS. “Fences” are not defined in section 284(b)(7) and courts would likely agree that any physical barrier would meet the description.
Per 10 U.S.C., Section 2808 (Military Construction (MILCON)), this declaration of a national emergency at the southern border requiring the use of the armed forces authorizes the secretary of defense to determine whether border barriers are necessary to support the use of the armed forces and to re-direct unobligated DOD MILCON funding to construct border barriers if required. Section 2808 is less ambiguous. It authorizes border barriers as the Secretary of Defense sees fit.
When President Trump said he had a plan to get $8 billion for border barriers, he meant it. And these provisions don’t come with the handcuffs included in the funding bill signed by the president today.