8

Would the state of emergency need to be in place for the entire construction?

There is no actual hard definition of what the wall will be so it's more of an administrative question

Assuming the wall takes between 1 and 5 years to build

If the funds are allocated then the state of emergency cancelled could the funds be then taken away

  • The headline and the question ask two different things, so you may want to clarify what you want to know. The question in the headline is somewhat unanswerable, since the definitions of what constitutes "building the wall" change frequently in terms of length and what constitutes a wall. The answer to the body of the question is probably "yes," since the activity involves an ongoing diversion of funds from other sources to a construction effort. – jeffronicus Feb 15 at 21:21
  • @jeffronicus Is the edit clear enough – user1605665 Feb 15 at 21:24
8

The state National Emergency does NOT need to be in effect for the duration of the construction.

Here is the definition of 'National Emergency':

The United States Code (Title 42, Chapter 68, Subchapter I, §5122), now defines emergency and major disaster as follows:

"Emergency means any occasion or instance for which, in the determination of the President, Federal assistance is needed to supplement State and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States. Source

The declaration of a National Emergency gives POTUS 136 additional powers, most of which are pretty boring.

Here are some relevant ones:

10 U.S.C. § 2808 (a)

Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize Secretaries of the military departments to undertake military construction projects, that are necessary to support such use of the armed forces (1982)

In other words, POTUS can order the military to build the wall without waiting for any laws to be passed by Congress. By declaring a National Emergency, POTUS is effectively saying that if Congress doesn't want to allocate funding for wall construction, he's just going to get tell the military to build the wall and there's not much they can do about it.

And,

33 U.S.C. § 2293

Secretary of the Army may terminate or defer any Army civil works project and apply the resources, including funds, personnel, and equipment, of the Army’s civil works program to authorized civil works, military construction, and civil defense projects that are essential to the national defense, without regard to any other provision of law

(1986)

Which means, POTUS can transfer funding, workers, and equipment from other Army civil works projects (roads, dams, bridges, maintaining training areas, things that the Army Corps of Engineers routinely works on) to building the wall, and there's not much anybody can do about it.

If Congress passes a law allocating satisfactory funding for building the wall, POTUS can then build the wall by hiring construction companies for the project, take the military off the project, and cancel the National Emergency even though the border wall has not been completed.

  • Is that really what 10-2808 says? It seems like the laws say they can authorize the use of resources support the deployment of military forces. The wall doesn't seem to fit. The other one seems to have more wiggle room. I think most of this is going to hinge on whether the President can declare anything he feels like to be a "national emergency," especially when, explaining himself, he said he didn't need to make the declaration - thehill.com/homenews/administration/… – PoloHoleSet Feb 15 at 22:32
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    Every POTUS has a great deal of latitude in declaring things National Emergencies. Anything which deals with public health, public safety, or a catastrophe. – TheLeopard Feb 15 at 22:39
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    Any full answer needs to address inevitable legal challenges, which are likely to delay any actual construction significantly. – Obie 2.0 Feb 15 at 22:57
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    That seems circular. They need to build the wall to support the military who is there to build the wall? Except that Trump's own contradicting statements undermine his claim that such an emergency exists, is my point. He's Tweeted how Border Patrol is kicking butt, with illegal immigration at "winning" low levels, and then just stated that he didn't need to declare an emergency to get the wall built, which kind of makes it not really an emergency. That fact that they are given latitude and flexibility doesn't mean that they have no standards, at all. We'll find out as it plays out, I guess. – PoloHoleSet Feb 15 at 23:01
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    The title 42 definition of emergency is not relevant here. It applies to disaster relief. The national emergency law is in title 50. – phoog Feb 16 at 9:20

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