Title 10 — Armed ForcesRelease 119-73
§2808 Construction authority in the event of a declaration of war or national emergency
Title 10 › Subtitle Subtitle A— - General Military Law › Part PART IV— - SERVICE, SUPPLY, AND PROPERTY › Chapter CHAPTER 169— - MILITARY CONSTRUCTION AND MILITARY FAMILY HOUSING › Subchapter SUBCHAPTER I— - MILITARY CONSTRUCTION › § 2808
Summary
The Secretary of Defense can order military construction projects that are not normally allowed when the President declares war or a national emergency that needs the armed forces. The projects must use only unused military construction money (not family housing) that became available because other projects were canceled or cost less. All projects together can cost no more than $500,000,000, unless the work is only inside the United States, in which case the limit is $100,000,000. Before starting work, the Secretary must tell the right Congressional defense committees by electronic notice why the authority is being used, what projects will be built, the estimated costs (including land costs), proof the funding rules are met, any laws being waived and why, and which canceled or changed projects freed the money and how that affects readiness or quality of life. Construction can begin only after five days from when those committees get the notice. The authority ends when the war or national emergency ends.
Full Legal Text
Title 10, §2808
Armed Forces — Source: USLM XML via OLRC
(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.
(b)A military construction project to be undertaken using the construction authority described in subsection (a) may be undertaken only within the total amount of funds that have been appropriated for military construction, excluding funds appropriated for family housing, that—
(1)remain unobligated as of the date on which the first contract would be entered into in support of the national emergency declaration described in subsection (a); and
(2)are available because the military construction project for which the funds were appropriated—
(A)has been canceled; or
(B)has reduced costs as a result of project modifications or other cost savings.
(c)(1)Except as provided in paragraph (2), in the event of a declaration by the President of a national emergency in which the construction authority described in subsection (a) is used, the total cost of all military construction projects undertaken using that authority during the national emergency may not exceed $500,000,000.
(2)In the event of a national emergency declaration in which the construction authority described in subsection (a) will be used only within the United States, the total cost of all military construction projects undertaken using that authority during the national emergency may not exceed $100,000,000.
(d)In the event of a declaration by the President of a national emergency in which the construction authority described in subsection (a) is used, the authority provided by such subsection to waive or disregard another provision of law that would otherwise apply to a military construction project authorized by this section may be used only if—
(1)such other provision of law does not provide a means by which compliance with the requirements of the law may be waived, modified, or expedited; and
(2)the Secretary of Defense determines that the nature of the national emergency necessitates the noncompliance with the requirements of the law.
(e)(1)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 following:
(A)The reasons for the decision to use the construction authority described in subsection (a), including, in the event of a declaration by the President of a national emergency, the reasons why use of the armed forces is required in response to the declared national emergency.
(B)The construction projects to be undertaken using the construction authority described in subsection (a), including, in the event of a declaration by the President of a national emergency, an explanation of how each construction project directly supports the immediate security, logistical, or short-term housing and ancillary supporting facility needs of the members of the armed forces used in the national emergency.
(C)The estimated cost of the construction projects to be undertaken using the construction authority described in subsection (a), including the cost of any real estate action pertaining to the construction projects, and certification of compliance with the funding conditions imposed by subsections (b) and (c).
(D)Any determination made pursuant to subsection (d)(2) to waive or disregard another provision of law to undertake any construction project using the construction authority described in subsection (a).
(E)The military construction projects, including any ancillary supporting facility projects, whose cancellation, modification, or other cost savings result in funds being available to undertake construction projects using the construction authority described in subsection (a) and the possible impact of the cancellation or modification of such military construction projects on military readiness and the quality of life of members of the armed forces and their dependents.
(2)In the event of a declaration by the President of a national emergency in which the construction authority described in subsection (a) is used, a construction project to be undertaken using such construction authority may be carried out only after the end of the five-day period beginning on the date the notification required by paragraph (1) is received by the congressional defense committees.
(f)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.
Legislative History
Notes & Related Subsidiaries
Editorial Notes
References in Text
The National Emergencies Act (50 U.S.C. 1601 et seq.), referred to in subsec. (a), is Pub. L. 94–412, Sept. 14, 1976, 90 Stat. 1255, as amended, which is classified principally to chapter 34 (§ 1601 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, see
Short Title
note set out under section 1601 of Title 50 and Tables.
Prior Provisions
Provisions similar to those in this section were contained in Pub. L. 97–99, title IX, § 903, Dec. 23, 1981, 95 Stat. 1382, which was set out as a note under section 140 [now 127] of this title, prior to repeal by Pub. L. 97–214, § 7(18).
Amendments
2021—Subsec. (a). Pub. L. 116–283, § 2801(b), (e)(1), inserted heading and struck out “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.” at end. Subsec. (b). Pub. L. 116–283, § 2801(b), added subsec. (b). Former subsec. (b) redesignated (e). Subsec. (c). Pub. L. 116–283, § 2801(a)(2), added subsec. (c). Former subsec. (c) redesignated (f). Subsec. (d). Pub. L. 116–283, § 2801(c), added subsec. (d). Subsec. (e). Pub. L. 116–283, § 2801(a)(1), (d), (e)(2), redesignated subsec. (b) as (e), inserted heading and par. (1) designation before “When a decision”, substituted “of the following:” and subpars. (A) to (E) for “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.”, and added par. (2). Subsec. (f). Pub. L. 116–283, § 2801(a)(1), (e)(3), redesignated subsec. (c) as (f) and inserted heading. 2017—Subsec. (b). Pub. L. 115–91 inserted “, in an electronic medium pursuant to section 480 of this title,” after “shall notify”.
Statutory Notes and Related Subsidiaries
Effective Date
For
Effective Date
and applicability of section, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title. Exception for Pandemic Mitigation and Response Projects Pub. L. 116–283, div. B, title XXVIII, § 2801(f), Jan. 1, 2021, 134 Stat. 4319, provided that: “Subsections (b), (c), (d) of section 2808 of title 10, United States Code, as added by this section, shall not apply to a military
Construction
project commenced under the authority of subsection (a) of such section 2808 during the emergency period described in section 1135(g)(1)(B) of the Social Security Act (42 U.S.C. 1320b–5(g)(1)(B)) if the Secretary of Defense determines that the military
Construction
project will directly support pandemic mitigation and response efforts of health care providers or support members of the Armed Forces directly participating in such pandemic mitigation and response efforts. Subsection (e) of section 2808 of title 10, United States Code, as redesignated by subsection (a)(1) and amended by subsection (d) of this section, shall still apply to any such military
Construction
project.”
Executive Documents
Executive Order No. 12734 Ex. Ord. No. 12734, Nov. 14, 1990, 55 F.R. 48099, which related to national emergency
Construction
authority, was revoked by Ex. Ord. No. 13350, July 29, 2004, 69 F.R. 46055, listed in a table under section 1701 of Title 50, War and National Defense. Ex. Ord. No. 13235. National Emergency
Construction
Authority Ex. Ord. No. 13235, Nov. 16, 2001, 66 F.R. 58343, provided: By the authority vested in me as President by the Constitution and the laws of the United States of America, including the National Emergencies Act (50 U.S.C. 1601 et seq.), and section 301 of title 3, United States Code, I declared a national emergency that requires the use of the Armed Forces of the United States, by Proclamation 7463 of September 14, 2001 [50 U.S.C. 1621 note], because of the terrorist attacks on the World Trade Center and the Pentagon, and because of the continuing and immediate threat to the national security of the United States of further terrorist attacks. To provide additional authority to the Department of Defense to respond to that threat, and in accordance with section 301 of the National Emergencies Act (50 U.S.C. 1631), I hereby order that the emergency
Construction
authority at 10 U.S.C. 2808 is invoked and made available in accordance with its terms to the Secretary of Defense and, at the discretion of the Secretary of Defense, to the Secretaries of the military departments. George W. Bush.
Reference
Citations & Metadata
Citation
10 U.S.C. § 2808
Title 10 — Armed Forces
Last Updated
Apr 6, 2026
Release point: 119-73