Riding the Border Wall to Reelection

By Scott Nicol

Representative Duncan Hunter (R-CA) likes to brag about the wall that he built on the border. It took a decade and $39 million to build the first 9 miles of border wall south of San Diego, and its impact was minimal at best, but it made Rep. Hunter proud. In the weeks just before the 2006 mid-term elections, politicians desperate to look tough on national security and hang on to their seats jumped on Hunter’s bandwagon and rushed through the Secure Fence Act, which mandated “[at] least 2 layers of reinforced fencing, the installation of additional physical barriers, roads, lighting, cameras, and sensors” along 700-plus miles of the U.S. - Mexico border. Though no walls would be built along the Canadian border and the coasts would likewise be unaffected, the 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 politicians who voted for the Secure Fence Act were primarily interested in the symbolism of a wall, not its substance, otherwise they would have checked to see if the original San Diego border wall had worked. In fact, it hadn’t. The Congressional Research Service concluded that the border wall “did not have a discernible impact on the influx of unauthorized aliens coming across the border in San Diego.” Recent Border Patrol statistics bear this conclusion out. Fiscal year 2007 saw a 7% increase in illegal crossings in the San Diego sector. In contrast, during the same year crossings border-wide dropped by 20%. The Del Rio sector, which like the rest of Texas east of El Paso has never had a wall, saw a 46% drop. The unwalled Rio Grande Valley saw a 34% drop, bringing illegal entries in that sector to a 15 year low. Even Department of Homeland Security Secretary Michael Chertoff recognized the border wall’s ineffectiveness, saying, “I think the fence has come to assume a certain kind of symbolic significance which should not obscure the fact that it is a much more complicated problem than putting up a fence which someone can climb over with a ladder or tunnel under with a shovel.”


Unfortunately, the border wall is not just a symbol or a line drawn on a map. It is a physical structure that will tear through private homes and property, municipalities, parks and wildlife refuges, and a college campus. While its benefits may be illusory, the damage that it causes will be real. Recognizing this fact, in December Representative Ciro Rodriguez (D-TX) and Senator Kay Bailey Hutchison (R-TX) inserted language into the Omnibus Spending Bill that gave DHS Secretary Chertoff the flexibility to determine where walls would be built, as well as how many miles of wall would be built, based on his determination of the Border Patrol’s operational needs. The bill also requires Chertoff to consult with property owners, local governments, Indian tribes, and the Secretaries of Agriculture and the Interior to “minimize the impact on the environment, culture, commerce, and quality of life for the communities and residents located near the sites at which such fencing is to be constructed.”

While this would seem like the first small step towards a rational border policy, it enraged right wing politicians who screamed that the border wall had been “gutted.” Representative Hunter, whose failed bid for the White House had been based on little more than his claim to have built the California border wall, quickly introduced the Reinstatement of the Secure Fence Act. It repeals the Omnibus Spending Bill’s flexibility language, and requires that 700 miles of double layered border wall be built within 6 months. The nearly 300 miles of border walls and vehicle barriers that have already been built would not count towards that number, and the funds necessary to build the new walls would be immediately appropriated. The bill currently has 19 cosponsors. Clearly, Representative Hunter realized that the border wall is his only claim to fame, and that during his presidential bid the media ignored him if he talked about anything else. Howling that our national security is being put at risk gets him media attention and brings in donations to his reelection campaign and his Peace Through Strength Political Action Committee.

Duncan Hunter is not alone in exploiting fears of an immigrant invasion and terrorists crossing our southern border to fill his campaign coffers. Senator Jim DeMint (R-SC) introduced the Complete the Fence Act, which does much the same things as Hunter’s bill. In a letter announcing the bill DeMint also heralded “the launch of a new grassroots website called Completethefencenow.com”. Of course, the “grassroots” website has a link to JimDeMint.com on its banner, a video clip of Jim DeMint on the home page, and declares at the bottom of the home page “Paid for by Jim DeMint For Senate, Inc.” It is little more than a campaign ad. In fact, the letter announcing the Complete the Fence Act ends with a heartfelt P.S., “I will continue to lead the charge for conservative reforms, but I need your help. Please consider making a contribution to my campaign.”

Not to be left out, Representative Walter Jones (R-NC) has introduced the Fence by Date Certain Act, which contains the same provisions as the Reinstatement of the Secure Fence Act. Congressman Jones is best known for his efforts to change the names of French Fries and French Toast to Freedom Fries and Freedom Toast in the congressional cafeteria to punish France for refusing to support the invasion of Iraq. His latest valiant effort to defend our national honor already has 42 cosponsors, including 14 of the 19 cosponsors of Hunter’s nearly identical bill. Why introduce a third bill that mimics two existing bills? Because actually building a wall is not the point. Getting credit for demanding its construction is.

Politics is a game that exists outside of the real world. In the real world the border wall is an expensive failure, but it sure looks great behind the candidate in a campaign ad. If demolished homes and bulldozed wildlife refuges clash with the rhetoric of protecting the homeland, they are simply ignored. When the Border Patrol says it only takes 5 minutes to get past the border wall, Representative Jones calls it “a foolproof barrier on the border.” While the General Accounting Office says that the wall has caused the number of crossers who die in the desert to double, Representative Hunter says “the fence works” in his ads. Reality is irrelevant. The only real-world consequences that matter to Hunter, DeMint, and Jones are campaign contributions in their pockets and votes in the next election.

Chertoff's Real ID Act Power to Waive U.S. Law Challenged

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 contained a provision intended to overrule the objections of the California Coastal Commission and anyone else who might oppose the construction of border barriers. “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.” Secretary of Homeland Security Michael Chertoff used his unprecedented new power to “waive in their entirety” the Endangered Species Act, the Migratory Bird Treaty Act, the National Environmental Policy Act, the Coastal Zone Management Act, the Clean Water Act, the Clean Air Act, and the National Historic Preservation Act, and a host of other federal laws to override court challenges to the construction of walls in California and Arizona. There is of course no reason for DHS to waive a law unless they know that their actions will violate it.

Defenders of Wildlife and the Sierra Club are challenging the authority to waive all of our nation's laws before the Supreme Court. They have issued the following press release:

WASHINGTON – Today, Defenders of Wildlife and The Sierra Club filed a petition asking the U.S. Supreme Court to hear its argument that the REAL ID Act, which grants Department of Homeland Security (DHS) Secretary Michael Chertoff unprecedented and sweeping authority to waive any and all laws to expedite the construction of a wall along the U.S.-Mexico border, is unconstitutional besides being harmful to the environment and border communities. The two conservation groups charge that such unbounded authority to the executive branch is a violation of the Constitution’s separation of powers provisions.

“By granting one government official the absolute power to pick and choose which laws apply to border wall construction, the REAL ID Act proves itself to be both inherently dangerous and profoundly un-American. The issue here is not security vs. wildlife, but whether wildlife, sensitive environmental values and communities along the border will be given fair consideration in the decisions the government makes,” said Rodger Schlickeisen, president of Defenders of Wildlife. “We are hopeful that the Supreme Court will take up this case in order to protect the fundamental separation of powers principles enshrined in the United States Constitution”

“Laws such as the National Environmental Policy Act and the National Historic Preservation Act are part of America's enduring legal framework, and no agency or public official should be allowed to ignore them,” said Carl Pope, executive director of Sierra Club. “Our laws have provided Americans a voice in the decision-making process that affects their lives, their human rights and the protection of wildlife; our government must not exempt itself from obeying those laws.”

The groups’ petition is the latest chapter in their legal efforts dating back to October, 2007 to safeguard the borderlands in the face of aggressive border wall construction. At that time, Defenders and The Sierra Club filed a lawsuit challenging DHS and Bureau of Land Management’s (BLM) approval of border wall construction within the San Pedro Riparian National Conservation Area in Arizona. After a federal judge in the U.S. District Court for District of Columbia found that the groups would likely prevail on their claims and issued an injunction blocking further construction of the wall, Secretary Chertoff waived 19 laws intended to protect public health, wildlife and endangered species, clean air and water, and historic and archeological sites to move forward with construction.

In their petition to the U.S. Supreme Court, Defenders and The Sierra Club contend that the REAL ID Act’s waiver provision unconstitutionally allows the DHS secretary unilaterally to repeal laws, threatening the system of checks and balances assured in the Constitution.

Since passage of the REAL ID Act in 2005, Secretary Chertoff has used this power to waive laws on three occasions:
to complete a wall near San Diego, California
to remove vehicle barriers and replace them with a wall in the Barry M. Goldwater Range in Arizona
to build a border wall within the San Pedro Riparian National Conservation Area.

In addition, Secretary Chertoff appears poised to again waive laws in relation to proposed border wall construction in Texas, in order to bypass extensive opposition from local residents, elected leaders, business owners, and conservationists.

“It isn’t too much to ask that DHS and other government agencies comply with our nation’s environmental laws along the border, particularly where international treasures like the San Pedro River are at stake,” said Schlickeisen. “We can not afford to let this keep happening all across the border or we will be left with nothing but a 700-mile testament to our own short-sightedness.”

Defenders and Sierra Club are represented by the Yale Law School Supreme Court Clinic, led by Professor Dan Kahan. Defenders is also represented by Andrew J. Pincus and Charles Rothfeld of Mayer Brown, LLP.

COURT RULES SECRETARY CHERTOFF VIOLATING THE LAW IN BUILDING BORDER WALL

The Center for Human Rights and Constitutional Law released the following statement regarding their lawsuit defending the private property rights of border resident Eloisa Tamez:

In a 32-page decision issued today, a federal judge in Brownsville ruled that Secretary of Homeland Security Michael Chertoff violated federal law in his rush to build several hundred miles of border fencing in Southern Texas.

In a lawsuit filed by Secretary Chertoff in January against Dr. Eloisa Tamez, the Department of Homeland Security requested an expedited court order condemning Dr. Tamez's land so it could immediately commence a survey for the planned border fence. Dr. Tamez is an indigenous land-grant property owner in South Texas who refused to voluntarily give the U.S. Government a six month right to enter her land to survey for the border wall.

About twenty cases filed by Secretary Chertoff to condemn land along the border have been consolidated before federal judge Andrew Hanen in Brownsville, Texas, and delayed pending the outcome of Dr. Tamez's case.

In response to the government's suit, the court held a lengthy hearing on February 7 at which Dr. Tamez's lawyers with the Los Angeles-based Center for Human Rights and Constitutional Law argued that Secretary Chertoff had violated federal law by failing to negotiate with Dr. Tamez to arrive at a "fixed price" for the six month access it sought before suing to condemn the land to allow the survey to proceed.

In the decision issued today, judge Hanen ruled that "Dr. Tamez correctly asserts that negotiations are a prerequisite to the exercise of the power of eminent domain" under federal law. The court further concluded that Secretary Chertoff had presented "insufficient evidence ... as to whether there has been bona fide efforts to negotiate with Dr. Tamez." As it has done for over a month now, the court refused to sign an expedited order condemning Dr. Tamez's land so that the Department of Homeland Security can start a survey for its planned border wall.

The court also decided that a clause in the 2008 Appropriations Act for the Department of Homeland Security enacted in December 2007 that requires the Secretary of Homeland Security to consult with property owners to minimize the adverse impacts of any border activity is not a defense to the temporary access the Department seeks to conduct a survey, "but that it still may be a defense to later activity by the Government" when it seeks to enter her property: "Given the mandatory language of the consultation clause, that 'the Secretary of Homeland Security shall consult . . .,' this Court may find it proper to require compliance with the consultation clause, when appropriate, as a condition prior to entry onto the property after the taking has been completed ... Dr. Tamez's objections concerning the failure of the Government to abide by the consultation clause are denied without prejudice to her ability to reassert those objections at a later point in time" if the Government actually seeks to enter her property.

The court rejected Dr. Tamez's argument that if she and the Department of Homeland Security are unable after negotiations to agree on a fixed price for the right of temporary access to her land, that the government may only proceed to condemn her land under a federal law that grants her a right to a jury trial. The decision states that if the parties are unable to negotiate a fixed price for the interest the Government seeks in Dr. Tamez's land, then the Department of Homeland Security may seek to condemn the land under an expedited procedure known as the Declaration of Taking Act.

The court ordered the Government agents "to either partake in negotiations and/or provide this Court with any relevant evidence they may have concerning the existence of bona fide efforts to negotiate" by March 21.

In a statement issued through her lawyers, Dr. Tamez stated: "The court's order issued today vindicates my position that Secretary Chertoff has proceeded to seize my land and the land of other property owners in violation of federal law. On the other hand I am disappointed that the court ruled that Secretary Chertoff may use the expedited condemnation procedures after he negotiates with property owners to arrive at a fixed price for the use he seeks of our property. I am also pleased that the court appears to agree that property owners have the right to be consulted before Government agents actually enter our land. Under federal law the consultation we will insist upon must seek to minimize the adverse impact of any entry onto our lands on the environment and our cultural and economic rights. I intend to continue fighting this case to insure that Secretary Chertoff does not violate the law while rushing forward to build an ill-conceived border fence that will in many ways destroy border communities."

Peter Schey, President of the Center for Human Rights and Constitutional Law, and Dr. Tamez's lead counsel, responded to the ruling: "We will carefully study this decision to see how it may be used by other border property owners to protect their rights to the fullest extent permitted by law. Like border property owners, Secretary Chertoff is also bound by applicable laws and may not run roughshod over property owners' rights in his rush to complete an ill-conceived border wall. The proposed border wall will do little to stop undocumented migration but it will significantly increase deaths and injuries by diverting migrants to more dangerous border crossings. Regardless of how ill-advised the proposed border wall is, it certainly may not be built on a foundation of illegal and lawless conduct by the Department of Homeland Security. We welcome the court-ordered negotiations with the Government to explore a fair price for the property access that Secretary Chertoff seeks in Dr. Tamez's land. Once those discussions are concluded, we will demand that consultation take place with Dr. Tamez before any federal agents enter her land. By law these consultations must be aimed at minimizing any adverse impact of entry onto her land on the environment and on her economic and cultural rights. We will certainly also seek the same protections for all similarly situated property owners along the US-Mexico border."

Arnoldo Garcia, Senior Policy Associate with the National Network for Immigrant and Refugee Rights that has been supporting Dr. Tamez's lawsuit said: "It is time for Congress to reconsider building a Berlin-type militarized wall along the US-Mexico border. The more the border area is militarized and criminalized, the more migrants die trying to come to the US in search of little more than a better life and the ability to join or support their families. This country urgently needs rational and humane immigration reform, not walls that kill people. When Congress musters the courage to enact immigration reform, the need for a border wall will all but disappear. What good does it do to spend hundreds of millions of dollars on a border wall when half the undocumented immigrants enter the United States with non-immigrant visas, not through the US-Mexico border. Virtually all migration experts agree that we need to promptly legalize the undocumented population, issue a sufficient number of visas in the future to meet the known demand, and invest in sustainable development in the major sending communities abroad, not turn the United States into a fort surrounded by another Berlin wall."

The court's Order is available at http://www.nnirr. org/resources/ docs/EloisaTamez Case3-7-08- Order.pdf

Contacts:Peter Schey, Center for Human Rights and Constitutional Law, lead attorney for Dr. Tamez 323 251-3223Arnoldo Garcia, National Network for Immigrant and Refugee Rights, 510 928-0685Margo Tamez, daughter of Dr. Eloisa Tamez, Co-Founder, Lipan Apache (El Calaboz) Women Community Defense 509-595-4445

We Call for a Moratorium on Border Wall Construction

The No Border Wall Coalition announced today that they are joining together with other organizations across the country in a call for a moratorium on the construction of walls along the U.S.-Mexico border. The groups claim that the Department of Homeland Security’s (DHS) border wall project is politically motivated, that it will have no impact on immigration or smuggling, and will do nothing to protect the U.S. from terrorism. Yet the wall could have devastating consequences for the environment, the economy, and the communities of the border region.

The call for a moratorium comes on the eve of the primary elections in Texas, where there is vehement opposition to the border wall along the Rio Grande, the river that divides the U.S. and Mexico for 1,254 miles. The groups say that the moratorium was prompted in part by Homeland Security Secretary Michael Chertoff’s admission that no potential terrorists had ever been apprehended on the southern border. He told the New York Daily News last month, “I don't see any imminent threat" of terrorists infiltrating from Mexico. (“Michael Chertoff’s Deepest Fears: Terrorists Entering U.S. from Canada,” February 10, 2008)

The groups note, however, that DHS has frequently referred to the imminent threat of “terrorists and terrorist weapons” crossing the southern border in order to justify the breakneck speed of border wall construction. Indeed, DHS has fast-tracked the border wall project and expects to complete 370 miles of walls along the border by December of this year. The groups assert that the deadline of December 2008 is an arbitrary date timed to coincide with the last month of the Bush Administration’s period in office. This deadline, coupled with pressure from far right-wing pundits and politicians, has resulted in what the groups call “a mad rush to build the wall” without regard to any coherent operational strategy.

Citing the Border Patrol’s own statistics, they note that illegal crossing of the southern border has decreased significantly between 2006 and 2007, including a 34% decrease in the Rio Grande Valley Sector and a 46% decrease in the Del Rio Sector. Both Texas sectors are slated to get walls despite this decrease and in spite of intense local opposition. By contrast, the heavily fortified San Diego Sector, where a triple-layer wall divides the border, saw a 7% increase in illegal crossing, suggesting that walls are not a meaningful deterrent for undocumented crossers. Indeed, a June 2007 Congressional Research Service report concluded that the walls in San Diego had “no discernible impact” on the number of people entering the U.S. illegally (“Border Security: Barriers Along the U.S. International Border,” updated June 5, 2007). Border Patrol has also stated repeatedly that a wall only slows crossers down by a few minutes, rather than stopping them.

The groups are also calling for an immediate suspension and repeal of section 102 of the Real ID Act of 2005, which gives Secretary of Homeland Security Michael Chertoff the power to waive all laws in order to build the border wall without regard to the negative consequences it will have in the border region. The groups say that such power concentrated in the hands of an unelected official makes a mockery of Democratic processes and places border residents under an undue burden, denying them the same legal protections afforded the rest of America. Secretary Chertoff has invoked this unprecedented power three times in order to build walls in California and Arizona, waiving a host of laws in their entirety, including the Endangered Species Act, the Migratory Bird Treaty Act, the National Environmental Policy Act, the Coastal Zone Management Act, the Clean Water Act, the Clean Air Act, and the National Historic Preservation Act. Texas border resident Scott Nicol said of Chertoff’s waivers, “The only reason to waive the laws is because you intend to break them.”

The Real ID Act also denies individuals and organizations the right to sue DHS for the damages the border wall will cause, limiting lawsuits only to those based on constitutional grounds. Thus, Chertoff can use the waiver provision as a trump card in the face of almost any legal challenge. The groups claim that this has had a chilling effect on those individuals and entities that have a legitimate case against DHS and has permitted the agency to disregard public safety, environmental protection, and humanitarian concerns whether or not a waiver is formally invoked.

In the hurricane-prone Lower Rio Grande Valley of South Texas, the border wall is planned to be constructed on or near the flood control levees that line the bank of the Rio Grande. A levee-wall is also planned for Presidio, Texas in Big Bend. Yet, there have been no studies published that describe what impact the proposed wall would have on flooding or on the integrity of the levee system.

The desertlands of Arizona and the neighboring Mexican state of Sonora are home to the federally endangered Sonoran pronghorn, which must travel great distances back and forth across the border in search of water and forage. In recent years, they have bounced back from the brink of extinction thanks to a federal recovery program. Though miles of wall cutting across their range could have grave consequences for their survival, the wall is going up in Arizona with little analysis of these consequences.

DHS has continued to operate under the false assumption that the harsh conditions of the desert are a deterrent for people seeking entry into the U.S. As DHS build walls in populated areas, desperation drives more people into remote desert areas where they are more likely to die from dehydration and exposure. The General Accounting Office found that as walls have gone up, the number of people who have died attempting to enter the U.S. doubled between 1995 and 2005 (“Border-Crossing Deaths Have Doubled Since 1995,” August 2006). This is an ongoing humanitarian crisis that requires an immediate solution.

The groups note that the border wall is meant to be a permanent structure that will therefore have permanent consequences, and assert that it is irresponsible to erect the wall without full knowledge of what those consequences will be. DHS is pushing ahead with a timeline that is based solely on election year politics. DHS’s blind rush to draw lines on a map, heedless of the consequences on the ground, makes a moratorium on border wall construction imperative. The groups call upon Congress to take the time to evaluate the serious costs of the border wall and to determine whether it is in fact the best way to address the complex issues of immigration and national security.