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10 U.S. Code 2808: Morning Defense Newsletter

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The remainder will come from

three separate “pots,” Mulvaney


said: $600 million from Treasury
Department drug-related
forfeitures; $2.5 billion from a
Defense Department drug
prevention fund; and $3.6 billion,
the largest chunk, from
unobligated military construction
funds, or MILCON.

The White House intends to access


the $3.6 billion in MILCON funds
through a statute (10 U.S. Code
2808) that allows the president, in
the event of a national emergency,
to tap MILCON for a project that
"requires use of the armed forces"
and supports those forces.

Legal challenges to the policy will


almost certainly challenge any
notion that building a border wall
has much to do with the armed
forces. Although the Trump
administration has deployed
thousands of active-duty troops to
the border, critics have said that
this was a symbolic action
intended to create a sense of crisis
prior to the midterm elections.
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Sam Berger, a vice president with
the liberal Center for American
Progress and former Obama
administration budget official,
characterized the maneuver as
“illegally raiding” the MILCON
fund "because the Section 2808
authority requires that, in a
declared national emergency, the
money be used in support of the
military. Here it’s the military
supporting the building of the wall
— it’s completely reversed.”

Legal challenges will likely also


question whether Trump's
national emergency represents a
genuine crisis. The number of
Border Patrol arrests in fiscal year
2018 — a standard metric to
measure illegal crossings — were
below the yearly average over the
previous decade.

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