The Border Wall’s Lawless History

By Scott Nicol

The border wall, which has already done tremendous damage to the environment of our borderlands, will in coming weeks plug a canyon south of San Diego. More than 2 million cubic yards of earth will be torn from adjacent hills and dumped into a canyon called Smuggler’s Gulch to create a massive earthen berm. The wall will then be built on top of this berm, rather than following the canyon’s natural contours. The Keiwit Corporation will be paid $48.6 million to fill the canyon and build 3.5 miles of border wall, doing irreparable damage the Tijuana River estuary in the process. In Keiwit’s home state of Nebraska, or any other part of the country, federal laws would limit the destruction that such a reckless project could do, but on the border the Department of Homeland Security is no longer bound by our nation’s laws.

In 1996 Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, which called for the construction of walls along the U.S.-Mexico border. Beginning in the Pacific Ocean and extending inland for 14 miles, the wall would slice through protected lands, Smuggler’s Gulch, and the Tijuana River. It would consist of parallel concrete and steel walls with a graded road between them, lights, cameras, and sensors, and 50 feet on either side cleared of all vegetation.

California’s Coastal Commission determined that the border wall would violate the federal Coastal Zone Management Act. Of particular concern was the damage that would be done to the Tijuana River National Estuarine Research Reserve and other lands that had been set aside for protection, Smuggler’s Gulch in particular, as well as impacts on threatened and endangered species. The Sierra Club and other environmental groups challenged the border wall in court, alleging that it violated the National Environmental Policy Act. The judge agreed, and construction was halted.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 walls. It said, “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.”

Department of Homeland Security Secretary Michael Chertoff 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 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.

The Real ID Act amended the Illegal Immigration Reform and Immigrant Responsibility Act, with the phrase “under this section” referring to its 14 miles of California border wall. When the Secure Fence Act was passed two weeks before the 2006 mid-term election, it further amended the Illegal Immigration Reform and Immigrant Responsibility Act, replacing the 14 miles originally called for by the act with over 700 miles of border wall. Because these new walls were now “under this section” Secretary Chertoff had the power under Real ID to “waive all legal requirements” to build them as well.

In 2007 the California pattern was repeated in Arizona. The Sierra Club and Defenders of Wildlife challenged the construction of the border wall in the San Pedro Riparian National Conservation Area. The San Pedro was recognized by the National Audubon Society as its first Globally Important Bird Area, and designated as a world heritage natural area by the United Nations World Heritage Program. The court agreed that the Department of Homeland Security had ignored the requirements of the National Environmental Policy Act when they began building the wall through Arizona’s last free-flowing river, and an injunction temporarily halting construction was handed down. Rather than comply with the law, Secretary Chertoff waived it, once again suspending the laws that were the basis of a successful suit, along with 18 others. Within days of the waiver DHS restarted construction. This case is currently pending before the Supreme Court.

Apparently hoping to head off further court challenges to the border wall, last April 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. This followed the determination by the US Fish and Wildlife Service that, “any proposed fence and/or levee segment that bisects lands within the Lower Rio Grande National Wildlife Refuge cannot be found compatible with the purposes for which the refuge was established,” and would therefore be in violation of the National Wildlife Refuge Administration Act. It also brought an abrupt end to the Environmental Impact Statement process mandated by the National Environmental Policy Act.

The second waiver covered every other section of border wall that will be built in 2008 from San Diego, California to Brownsville, Texas. This 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 Clean Water Act, the Clean Air Act, the Endangered Species Act, and a host of others. It appears that in his rush to build the border wall, Chertoff was setting aside not only the laws that the wall was certain to violate, but any law that might in any way be relevant.

Predictably, this abuse of power invited court challenge rather than curtailing it. A diverse group of plaintiffs - El Paso County, the El Paso County Water Improvement District No. 1, the Hudspeth County Conservation and Reclamation District No. 1, the Ysleta Del Sur Pueblo of the Tigua Nation, Frontera Audubon Society, the Friends of the Wildlife Corridor, the Friends of Laguna Atascosa National Wildlife Refuge, and Brownsville’s Galeria 409 - have challenged the constitutionality of the Real ID Act’s waiver provision. They allege that giving an Administration appointee the power to overrule acts of Congress that were signed by the President for the express purpose of short-circuiting the functioning of the Judiciary is a violation of the Constitutionally mandated separation of powers.

This is not just an academic question; these plaintiffs will be directly impacted by the suspension of these laws. The waiving of the American Indian Religious Freedom Act means that the wall can be built without consideration of the sites on the Rio Grande that are important to the religious practices of the Tigua Nation. The El Paso and Hudspeth County water districts are charged with providing their counties with drinking and irrigation water. Not only has Chertoff waived the Clean Water Act and the Safe Drinking Water Act, but, “all federal, state, or other laws, regulations and legal requirements of, deriving from, or related to the subject of” the laws listed in the waiver. Apparently, no laws related to water are in force, leaving water districts with no way of knowing what rules still apply.

Long after the remains of the border wall share museum space with the broken concrete of the Berlin Wall, Smuggler’s Gulch will still be filled in, and the Tijuana River estuary that it flows into silted up. Secretary Chertoff, however, is so fixated on building the border wall that he is willing to ignore the consequences of his actions. Serious violations of federal law, resulting in irreparable damage to our nation’s natural and cultural heritage; to homes and farms and businesses; and to the continuation of Native American religious practices that predate the founding of the United States, are all acceptable costs according to this narrow mindset. Chertoff has admitted that, “Yes, you can get over it; yes, you can get under it,” but in his mind an ineffectual border wall is still worth sacrificing the fundamental principles enshrined in the U.S. Constitution.