BORDER WALL LEGISLATION
Two weeks before the 2006 midterm elections, President Bush signed into law the Secure Fence Act. The Secure Fence Act directed the Department of Homeland Security to construct, "2 layers of reinforced fencing, the installation of additional physical barriers, roads, lighting, cameras, and sensors" along 700 miles of our nation's 1,933 mile long southern border. Though no walls would be built along the Canadian border and the coasts would likewise be unaffected, the Secure Fence Act's pie-in-the-sky goal was "to achieve and maintain operational control over the entire international land and maritime borders of the United States."
The idea of building a wall along the U.S.-Mexico border has it roots near San Diego. The Border Patrol began erecting barriers along the border south of the city in 1990. Then in 1996, the Illegal Immigration Reform and Immigrant Responsibility Act mandated the construction of triple-layered "reinforced fencing" starting in the Pacific Ocean and extending 14 miles inland. The barriers consisted of parallel concrete and steel walls with a graded road between them, lights, cameras, sensors, and 50 feet on either side cleared of all vegetation.
In 2004, with 9 of the 14 miles of wall completed, the California Coastal Commission determined that building the border wall through the last miles of sensitive coastal area would violate the federal Coastal Zone Management Act. Construction was halted over concerns that the border wall would severely damage the Tijuana River National Estuarine Research Reserve and other protected lands, and have negative impacts on threatened and endangered species. The Sierra Club, Audubon Society, and other environmental organizations also brought suit, alleging that the Border Patrol had ignored key provisions of the National Environmental Policy Act.
But supporters of the border wall refused to let the nation's environmental laws stop them. In 2005 the Real ID Act was attached as a rider on an appropriations bill funding the wars in Iraq and Afghanistan after it failed to pass on its own merits. It contains a provision specifically intended to overrule the objections of the California Coastal Commission and anyone else who might oppose the construction of border walls. Section 102 says, "Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary's sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section."
Michael Chertoff, the Department of Homeland Security Secretary under President Bush, used his unprecedented new power to "waive in their entirety" the Coastal Zone Management Act, the National Environmental Policy Act, the Endangered Species Act, the Migratory Bird Treaty Act, the Clean Water Act, and other vital federal laws in order to build the San Diego border wall. The challenges brought by the California Coastal Commission and the Sierra Club were thrown out when the laws that they were based upon were waived, and construction began on the remaining 5 miles of border wall in California.
The waiver authority of Real ID section 102 was originally intended for the California border wall. However, in 2006 the Secure Fence Act was written such that the waiver provision applied to all of the new border walls that it mandated. With passage of the Secure Fence Act, the Secretary of Homeland Security now had the power to waive laws, not only in California, but along hundreds of miles of the U.S.-Mexico border.
The San Pedro Riparian National Conservation Area in Arizona was the next to feel the brunt of this destructive new power. When the Sierra Club and Defenders of Wildlife challenged the construction of the border wall across this World Heritage site and home of Arizona's last free-flowing river in 2007, a federal court agreed that the Department of Homeland Security had ignored the requirements of the National Environmental Policy Act, and handed down an injunction temporarily halting construction. Rather than comply with our nation's laws, Secretary Chertoff waived them, once again suspending the laws that were the basis of a successful suit. To head off future lawsuits, he also waived 18 other laws. Within days of the waiver, DHS restarted construction.
Apparently hoping to head off further court challenges to the border wall, in April 2008 DHS Secretary Chertoff issued two waivers. One waived 27 federal laws to allow for the insertion of border walls into the existing flood control levees in Hidalgo County, Texas. The second waiver covered every other section of border wall scheduled for construction from the Pacific to the Gulf of Mexico. This border-wide mega-waiver suspended 36 federal laws. Along with the environmental laws set aside in earlier waivers, Chertoff waived the Farmland Protection Policy Act, the National Historic Preservation Act, the Religious Freedom Restoration Act, the Native American Graves Protection and Repatriation Act, and a host of others, along with "all federal, state, or other laws, regulations and legal requirements of, deriving from, or related to the subject of" the waived federal laws.
Rather than suspending the rule of law along the border to build walls, the Department of Homeland Security could suspend construction and bring an end to the associated damage. The 2008 Supplemental Appropriations bill contained a provision which gives the Secretary of Homeland Security absolute discretion to decide whether or not to build walls along the border. It changed the Secure Fence Act's text to read, "nothing in this paragraph shall require the Secretary of Homeland Security to install fencing, physical barriers, roads, lighting, cameras, and sensors in a particular location along an international border of the United States, if the Secretary determines that the use or placement of such resources is not the most appropriate means to achieve and maintain operational control over the international border at such location.'' Although there is ample evidence that the border wall is causing tremendous damage without slowing the influx of undocumented immigrants or enhancing national security, neither Bush administration Homeland Security Secretary Chertoff, nor Obama administration Homeland Security Secretary Napolitano, have chosen to halt any border wall construction.
For some in Congress, border wall construction is an irresistible symbol, a way to show voters who will never actually see the border that they are defending the homeland. In 2009 the urge to sell this false sense of security and ride it to reelection led Senator Jim DeMint, whose home state of South Carolina is closer to Canada than Mexico, to insert an amendment into the Senate's bill funding the Department of Homeland Security that would have mandated that only "pedestrian" walls, not vehicle barriers, count towards a total of 700 miles of border wall. Another 369 miles of "pedestrian" border walls would have been required to fulfill the new mandate.
DHS spokesman Matt Chandler said that DeMint's amendment was, "designed to prevent real progress on immigration enforcement and [is] a reflection of the old administration's strategy: all show, no substance." The House version of the bill did not require further border wall construction, and in the House/Senate conference committee legislators retained the House language, leaving out the requirement for new border walls.
Representatives whose constituents live along the southern border, such as Raul Grijalva of Arizona, have attempted to lessen the wall's destructive impacts. Rep. Grijalva has repeatedly introduced legislation that would require a comprehensive cost-benefit analysis of the range of border enforcement measures; establish programs to monitor the impacts of border walls on the environment and, to the extent possible, repair the damage; and, most importantly, require that DHS obey all of our nation's laws. His proposals were included in the Comprehensive Immigration Reform for America's Security and Prosperity Act (CIR ASAP) of 2009, and, if enacted, would be a tremendous first step towards rational and effective border policies.