An Update on Military Funding for the Border Wall

INSIGHTi
An Update on Military Funding for the Border
Wall
May 21, 2021
In a proclamation released on his first day in office, January 20, 2021, President Joseph Biden
declared,
“Like every nation, the United States has a right and a duty to secure its borders and protect its
people against threats. But building a massive wall that spans the entire southern border is not a
serious policy solution…It shall be the policy of my Administration that no more American taxpayer
dollars be diverted to construct a border wall.”
The President’s proclamation directed a series of steps designed to interrupt southern border barrier
construction, and included:
 terminating the state of national emergency on the southern border
 pausing border barrier funding and construction activity, and
 developing a plan for redirection of funds managed by the U.S. Army Corps of Engineers
(USACE) for border projects. (In a subsequent implementation memorandum, the
USACE Commander was authorized to approve exceptions to avert immediate physical
dangers.)
On April 30, 2021, the Department of Defense (DOD) issued a statement announcing the cancel ation of
border barrier projects funded with redirected military funds. The Department of Homeland Security
(DHS) announced that its projects remain paused with the exception of certain projects in Texas and
California.
DOD has provided few details about how it intends to redirect military funds, which accounts might
receive redirected appropriations, or the cost of terminating USACE contracts. However, materials
released as part of ongoing litigation provide additional context.
Background
The Trump Administration directed $16.4 bil ion in funding to barrier construction along the southern
border. Most of these funds, approximately $10 bil ion, came from DOD.
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Figure 1. The Trump Administration’s $16.4 Billion for Border Barriers

Source: CRS analysis.
Notes: Transfers from Treasury Forfeiture Funds (TFF) in dark gray.
Of the approximately $10 bil ion in DOD border wal funds, $5.3 bil ion (53%) had been disbursed by
January 20, 2021, leaving $4.75 bil ion not yet disbursed. Figure 2 describes these amounts according to
the authority DOD used to redirect funds.
Figure 2. Funding Disbursed vs. Not Disbursed as of January 20, 2021
By Authority

Source: CRS analysis of USACE, “Status of Fund for Southwest Border Requirements,” as of January 20-22, 2021.
Compilation available here. Figures are rounded.
Notes: Amounts include contracts and project management costs of the initial project estimate for 10 U.S.C. §2808
funded projects. DOD updates provided to congressional defense committees on the status of obligated funds under each
authority (on a by-project basis).
Table 1 details amounts summarized by the previous figure.

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Table 1. Status of Military Funds for Barrier Construction
As of January 20, 2021
Authorities/Description
Contract Cost
Obligated
Disbursed
10 U.S.C. §2808 Subtotal
$3,600,000,000
$1,515,402,556
$951,606,047
Project Funding
$3,600,000,000
$1,513,345,825
$949,642,941
Project Management
-
$2,056,731
$1,963,106
10 U.S.C. §284 Subtotal
$6,409,416,676
$6,343,874,477
$4,353,198,355
Project Funding
$6,295,796,992
$6,268,371,085
$4,296,027,846
Project Management
$113,619,684
$75,503,392
$57,170,509
Total
$10,009,416,676
$7,859,277,033
$5,304,804,402
Source: CRS analysis of USACE, “Status of Fund for Southwest Border Requirements,” as of January 20-22, 2021.
Compilation available as a pdf table.
Notes: Amounts include contracts and project management costs of the initial project estimate for 10 U.S.C. §2808
funded projects. DOD updates provided to congressional defense committees on the status of obligated funds under each
authority (on a by-project basis).
Termination of National Emergency
President Biden’s proclamation terminated the national emergency at the southern border that President
Donald Trump declared on February 15, 2019, and extended twice, most recently on January 15, 2021.
The termination suspended special Presidential authorities available during a national emergency,
including 10 U.S.C. §2808, which authorizes the Secretary of Defense to redirect unobligated military
construction funds to support armed forces engaged in an ongoing emergency. (President Biden’s January
2021 proclamation ended the national emergency but did not terminate existing contracts.)
DOD previously used 10 U.S.C. §2808 to defer approximately 125 Military Construction (MILCON)
projects and redirect $3.6 bil ion in MILCON funding for border barrier construction. Congress has not
provided additional appropriations for these deferred projects.
Border Barrier Construction Pause
President Biden’s proclamation directed the Secretaries of DOD and DHS to pause border barrier
construction and the obligation of funds related to the effort, regardless of whether such funds came from
DHS or DOD accounts. Additional y, officials were directed to make a comprehensive inventory of
existing projects and assess contractual obligations related to termination.
An internal DOD memorandum indicates the government may incur approximately $1.4 bil ion in
suspension and termination costs, though final amounts are subject to DOD negotiations with contractors.
Table 2. DOD Estimates of Termination and Suspension Fees

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Costs
10 U.S.C. §2808 10 U.S.C. §284
Total
Termination
$180,000,000
$624,000,000
$804,000,000
Suspension
$160,000,000
$415,000,000
$575,000,000
Total
$340,000,000
$1,039,000,000 $1,379,000,000
Source: Department of Defense, “Information Paper: Background and Next Steps on Border Barrier Project
Termination,” April 27, 2021. See Supreme Court, Exhibit E.
Notes: Amounts are estimates that may be subject to negotiation with contractors. In some cases, termination may
include de-scoping costs, outstanding contract claims, and other costs associated with contractor activities.
Plans for Repurposing Border Barrier Funds
Final y, the proclamation directed the Secretary of Defense and others to provide a plan within 60 days to
assess the feasibility of terminating existing border barrier contracts and redirecting funds, insofar as such
actions were “consistent with their appropriated purpose.” Neither DOD nor DHS have released such a
plan.
On April 30, 2021, DOD released a statement indicating it would proceed with actions terminating border
projects. “With this cancel ation, unobligated military construction funds that had been diverted from
military construction projects wil be used for previously deferred military construction projects. ” An
internal DOD memorandum suggests that more than $2.1 bil ion in MILCON (10 U.S.C. §2808) funding
wil be released to the services.
As of January 2021, approximately 99% of funds transferred using 10 U.S.C. §284 had been obligated
and are now expired. This does not preclude their use, since expired appropriations are stil available to
liquidate existing obligations for a period of five years. However, they are no longer available for
incurring new obligations.


Author Information

Christopher T. Mann

Analyst in Defense Policy and Trade




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