"§2808. Construction authority in the event of a declaration of war or national emergency (a) 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 (50 U.S.C. 1601 et seq.) that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces. 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. (b) When a decision is made to undertake military construction projects authorized by this section, the Secretary of Defense shall notify, in an electronic medium pursuant to section 480 of this title, 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. (c) The authority described in subsection (a) shall terminate with respect to any war or national emergency at the end of the war or national emergency."
"After saying that the federal government could use eminent domain to secure the land for the wall, Trump responded to a question about using his emergency powers to build the wall with a definitive "yes."
"Absolutely, we can call a national emergency. I haven’t done it. I may do it. I may do it. We can call a national emergency and build it very quickly."
"It’s another way of doing it. If we can do it through a negotiated process, we’re giving that a shot."" DJT
I am not a lawyer but this section of the Emergencies Act seems very clear to me. The authority does not seem to be limited to land already owned by the federal government. How much money that is in the DoD accounts for construction in this fiscal year is "unobligated?" This is probably a large number.
So, what is really occurring in this food fight? IMO Trump is positioning the Democrats so that that they will be completely uncooperative about the border barriers and then he will declare a national emergency in defense of what is so far an unarmed invasion by inundation and employ this section of the Emergencies Act to build out a large piece of the barrier system.
The Democrats and their marchers will scream and curse but what could they actually do to stop him? They would undoubtedly obtain an injunction from a federal district court judge, probably in the 9th Circuit's area, but this injunction would probably be based on questioning the President/CinC's judgment concerning national defense, which IMO is outside the competence or power of the Article 3 courts. IMO he would be justified in simply ignoring such an injunction. The Dems would then try to impeach him. Good luck on that one!
Having dealt with this issue, Trump would then be free to re-open the closed parts of the government. pl