Will Congress Restore the Rule of Law or Build More Border Walls?

By Scott Nicol

The walls that are tearing through border communities and wildlife refuges have nothing to do with national security, immigration policy, or drug control. The construction of border walls merely allows for political posturing during election cycles. Politicians and pundits decry our nation’s “broken borders,” and blame undocumented immigrants for all of our nation’s ills, from unemployment to failing schools to municipal budget shortfalls to crime. Scapegoats are convenient, especially when they cannot vote, and scapegoating distracts voters from politicians’ inability to solve any of these problems. And so, two weeks before the 2006 mid-term election, the Secure Fence Act was signed into law. Two an a half years later the walls that it mandated are nearing completion, and we as a nation must decide what happens next.

One path forward was proposed by Representative Raul Grijalva, whose southern Arizona district is now home to mile upon mile of border wall. Last month he introduced the Border Security and Responsibility Act (HR 2076). This legislation seeks to prevent future border security measures from repeating the worst abuses that have accompanied border wall construction.

While the Secure Fence Act established walls as the primary strategy for controlling the border, the Border Security and Responsibility Act would instead, “give first priority to the use of remote cameras, sensors, removal of non-native vegetation, incorporation of natural barriers, additional manpower, unmanned aerial vehicles, or other low impact border enforcement techniques.” Border walls, which have been shown to be largely ineffective, go to the back of the line.

HR 2076 would also require the Department of Homeland Security to develop a comprehensive cost-benefit analysis, comparing the full range of possible strategies for protecting the border. Along with looking at whether border walls actually stop anyone, DHS would have to factor in land acquisition costs, construction costs, maintenance costs over 25 years, impacts on wildlife, impacts on hydrology, and the costs of mitigating adverse impacts to Federal, state, local, and private lands and waters. The costs and benefits of border walls would then be compared to similar analyses of adding more Border Patrol agents, so-called “virtual” fences, natural barriers, removing non-native vegetation, and increasing cooperation with Mexican and Canadian authorities.

Sign on private property near Brownsville, Texas that will be cut off by the border wall.

Rather than shutting out border residents and other stakeholders, Rep. Grijalva’s bill would require the Secretary of Homeland Security to consult with other federal agencies, tribal governments, local officials, and private property owners to minimize the negative impacts of border security measures. Real consultation that allows for meaningful input from those who live and work along the border would be a tremendous change for the better.

Most importantly, it would strike the provision of the Real ID Act that gives the Secretary of Homeland Security the power to waive any law that he or she sees fit in order to build border walls. No longer would one unelected Administration appointee have the power to sweep aside laws passed by Congress and signed by presidents. The rule of law would be restored along our nation’s southern border.

And this restoration is critical. When former Homeland Security Secretary Chertoff waived 36 federal laws last year, he was not simply cutting red tape. He knew that in building border walls he would be violating those laws. Those laws were enacted to prevent the kind of damage that we see everywhere border walls have been built.

In California’s Otay Mountain Wilderness Area, mountainsides above the Tijuana River are currently being dynamited to build the border wall. When DHS proposed building walls in these rugged mountains the Environmental Protection Agency raised concerns that the dumping of tons of rubble, and the erosion that would follow, would clog the river and violate the Clean Water Act. Normally that would be a moot point, because it is illegal to drive a motorized vehicle in a Wilderness Area, much less plant dynamite. But with the Wilderness Act and the Clean Water Act waived, blasting is occurring today, and will continue through the summer.

Texas border communities rely on the Rio Grande for irrigation and drinking water. But Secretary Chertoff waived not only the Safe Drinking Water Act and the Clean Water Act, but also “all federal, state, or other laws, regulations and legal requirements of, deriving from, or related to the subject of” those, and 34 other, laws. So where the wall has been built, in El Paso and Eagle Pass and Hidalgo and Brownsville and other border communities that draw water from the Rio Grande, all laws “related to the subject of” water are no longer in effect. This absurd situation has prompted the El Paso County Water Improvement District No. 1 and the Hudspeth County Conservation and Reclamation District No. 1 to take part in a lawsuit challenging constitutionality of the Real ID Act’s waiver authority.

"Floating fence" border wall design on top of the flood control levee in Cameron County, Texas

The border wall has been tremendously destructive, both to American lands, American communities and the American tradition of rule of law. But with most of the Secure Fence Act’s 670 miles of border wall close to completion, some might ask why the provisions of the Border Security and Responsibility Act are needed.

The answer came on the same day that Representative Grijalva introduced HR 2076, when Rep. Duncan D. Hunter introduced the Border Sovereignty and Protection Act. Apparently, Hunter Junior inherited the bad politics of his father along with his name and Congressional seat. His father bragged in campaign ads that he had built the border wall, and that it was a stunning success. Ignoring the question of why more walls are needed if the first walls had already done the job, Hunter Junior’s bill requires, “two layers of reinforced fencing along not fewer than 350 miles of the southwest border” in addition to all that has already been built. It also provides a blank check to pay for construction.

"Triple-layer fence" border wall design near San Diego, California

Grijalva’s bill requiring consultation, a cost-benefit analysis, and the restoration of the rule of law currently has 20 cosponsors. Hunter’s bill, requiring another 350 miles of double-layered border wall and providing unlimited funds to pay for them, currently has 26 cosponsors.

When the first sections of border wall were built in southern California in the mid 1990s, the Congressional Research Service found that they had “no discernible impact” on the number of undocumented immigrants who entered the United States each year. Rather than realize that the wall was a failure, border wall proponents, most notably Duncan’s dad, decided that the wall was not long enough. Now that another 600+ miles of border wall have been built, and the Border Patrol routinely refers to them as “speed bumps,” the cry goes up for more walls. In the perverse logic of those who have tied their political careers to the border wall, if the wall is a failure, it is simply because it is too short.

If this logic is allowed to prevail, mile upon mile of new border wall will be built with no concern for the communities or ecosystems that lay in their path. That is why passage of Representative Grijalva’s Border Security and Responsibility Act is so critical. It restores a degree of sanity to border policy, forces the federal government to respect the legal rights of border residents, and gives us a seat at the table when decisions are made regarding our home.

The Border Wall vs. Property Rights: Texas’ Senators Support the Wrong Side

by Scott Nicol

To build the border wall the federal government has brought condemnation lawsuits against more than 300 Texas landowners. Homeowners, farmers, nature preserves, and municipalities all face the imminent loss of their property for a patchwork of walls that have “no discernible impact” on the overall numbers of immigrants or smugglers who cross the border, according to the Congressional Research Service. The wall is a rhetorical point used by politicians who do not represent border communities to claim that they are working to protect the homeland. For them, the real impact of the border wall is irrelevant; all that matters is the perception among voters who will never actually see it. Members of congress who do represent Texas border residents should be fighting to defend our lands and our homes, literally the homeland that the border wall is supposed to secure. Instead, Texas’ Senators have worked to fund and build the wall that today stands in Hidalgo County and is tearing through Brownsville.

Land nearest the Rio Grande has always been prized because of the rich soil and the year-round availability of water. Many families along its banks still hold title to lands that were granted to their forefathers by the King of Spain as early as the 1740’s, decades before the United States and Mexico became sovereign nations, and more than a century before the Rio Grande became their shared border. For these owners, the land is a priceless piece of their family’s history.

Eloisa Tamez’ property has been in her family since the King of Spain issued the San Pedro Carracitos Land Grant in 1763. In 2007 DHS demanded access to her property for border wall surveys, then initiated condemnation proceedings. Dr. Tamez enlisted the Center for Human Rights and Constitutional Law and initiated a class-action lawsuit alleging that DHS has refused to negotiate with landowners before condemning their property, as the law requires. She also demanded that DHS reveal its criteria for citing the border wall, which in places runs for miles through poor and/or minority communities, then ends abruptly at the property line of wealthy property owners and resort communities. David Pagan of Customs and Border Protection responded, "We do not plan to suspend work on the construction of fence in order to hold a series of additional consultation meetings." On April 15, 2009 the court ruled against Dr. Tamez’, allowing the federal government to seize her land. Within a week the border wall had been built across her property.

Last February Eva Lambert awoke to the sound of heavy equipment erecting the border wall’s steel posts on her land. In her case, either through disregard for the law or incompetence, DHS finished construction of the wall before anyone had contacted her to negotiate a price or condemn her property. Denied her day in court as well as her property, Ms. Lambert is still waiting to find out what compensation will be offered. As she told the Brownsville Herald, "In the end, the government does what it wants."

In the low-lying river delta of South Texas, the treaty that established the Rio Grande as the border prohibits construction between the levee and the river. This is because a structure immediately adjacent to the river could deflect floodwaters and shift the river’s course, resulting in a change in the international boundary. So, to comply with the treaty, the border wall is being built into, on, or behind the flood-control levee that parallels the river rather than immediately adjacent to it. This levee is located up to two miles north of the river, leaving thousands of acres of U.S. territory, much of it privately owned, behind the border wall.

The Department of Homeland Security has offered only to pay for the exact footprint of the border wall (typically, a 60-foot wide strip) as it passes through a parcel of land. In their simplistic calculations, the agency has completely issues such as the devaluation of contiguous property, problems accessing land and homes behind the wall, impacts on livelihood, and the importance of cultural heritage. Despite the range and complexity of these issues, DHS has steadfastly refused to enter into meaningful negotiations with property owners.

The Nature Conservancy’s Southmost Preserve maintains one of the last remaining Sabal Palm forests along the banks of the Rio Grande. The border wall will bisect the preserve, cutting off more than 700 acres along with an equipment barn, office, and caretaker’s residence. The property was purchased in 1999 for $2.6 million, but DHS has only offered to pay $114,000 for the wall’s footprint, a strip of land 60 feet wide and 6,000 feet long. DHS has refused to explain how they will access the property that will be behind the wall. They claim that gates will be built, but they won’t say who will get keys or under what circumstances Conservancy staff will be able to access the property. Like Dr. Tamez, the Nature Conservancy is attempting to use the courts to save their land.

Other homes, businesses, and properties that are behind the levees will be walled off entirely, trapped between the wall and the Rio Grande. DHS has refused to grant any compensation whatsoever for properties left on the “Mexican” side of the wall. Indeed, because DHS is focused solely on the wall’s exact footprint, they have failed to even make contact with some of the landowners with property behind the wall.

The Sabal Palm Audubon Center preserves another 557 acres of Sabal Palm forest, which will also be behind the border wall. Because the wall will be built a few feet to the north of their property line, DHS has not offered Audubon any compensation whatsoever. Both Audubon and the Nature Conservancy have said that restricted access for their employees may force them to cut their operations. There is also the concern that uncertain access for emergency personnel may make it impossible to purchase the insurance that allows busloads of local school children to visit the center. With construction of the border wall imminent, Audubon announced that on May 15, 2009 they will close to the public for at least the next 6 months.

The Department of Homeland Security has repeatedly claimed that they have consulted with landowners and local officials regarding border wall construction. But when the Texas Border Coalition repeatedly invited DHS and Customs and Border Protection officials to “walk the line” and see the impacts that the border wall will have on specific communities, they responded that they would only do so if the owners of the property that they would be crossing were kept away. Apparently, their preferred method of consultation is a condemnation proceeding.

In the face of these assaults on property rights by the federal government, one would expect Texas’ conservative Senators to stand up for their constituents. Private property and small government are central tenets of both of their stated philosophies. In July of 2007 Senator Cornyn told reporters, "I assure you there will be local consultation. There will not be ... unilateral actions on the part of the Department of Homeland Security without local input."

Senator Hutchison did add an amendment to the 2008 Omnibus Appropriations Bill that gave the Secretary of Homeland Security the flexibility to decide where walls should be built, as well as to spare places where walls do not make sense. The Homeland Security Secretary was also required to, “consult with the Secretary of Interior, the Secretary of Agriculture, States, local governments, Indian tribes, and property owners in the United States 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.”

Following howls of outrage from right wing pundits and politicians that she had “gutted” the Secure Fence Act, Hutchison backed away from her amendment. She has yet to confront DHS on its refusal to consult with property owners, as epitomized by its demand that landowners be kept away from any DHS employees who walk the line through their property. So long as she is afraid to fight on behalf of Texas landowners, the amendment that she authored is just more empty words.

Senator Cornyn’s statements assuring that there will be local consultation have also proved to be empty. Like Senator Hutchison, he has made no concrete effort to stand up for border residents. Instead, Cornyn sponsored the “Emergency Border Security Funding Act of 2007” which called for 700 linear miles of border wall and 300 miles of vehicle barriers along the US – Mexico border, and provided $3 billion dollars to build it. Cornyn’s bill went nowhere, but even without it DHS has received $3.1 billion to build the border wall.

On April 2, 2009, the one year anniversary of former Homeland Security Secretary Chertoff’s border-wide waiver that swept aside 36 federal laws, both of Texas’ Senators voted to add a motion to the Omnibus Appropriations bill that read, “To provide for a point of order against any appropriations bill that fails [to] fully fund the construction of the Southwest border fence.” The vote fell along party lines and failed, but in voting once again in favor of the border wall Hutchison and Cornyn chose party loyalty over the interests of their constituents.

This should not come as a surprise. When Cornyn looks back at the last election, he will look to the north Dallas suburbs as important to his win, not 540 miles south of Dallas to Brownsville. When Hutchison thinks about her upcoming bid to unseat Governor Perry, she will be counting on votes in Sugarland, not El Paso. Though they claim to represent the entire state, so long as they see border communities as politically irrelevant they will not work on our behalf.

The fact that their neglect is not surprising does not make it acceptable. Our Senators, as well as our U.S. Representatives and our President, were put in office to work for all of us. They can not be allowed to play favorites. When they do we need to speak up.

Some border representatives are working to defend border communities. Representative Grijalva of Arizona has authored HR 2076, The Border Security and Responsibility Act. It would require that the Department of Homeland Security work with border communities and landowners in developing security measures, rather than treat them as the enemy. DHS would also have to obey all of our nation’s laws, instead of sweeping away those which are seen as an inconvenience. Cosponsoring this bill in the House, or introducing a companion in the Senate, would be a concrete demonstration of support for border residents.

With this bill pending and walls under construction, it is critical that our members of Congress hear from their constituents right now. Urge them to support the Border Security and Responsibility Act. Demand that they work to stop further walls from tearing through the borderlands. Though only around 50 miles of border wall remain to be built it is not too late to stop it. If you lived in a home, or owned a farm, or worked at a wildlife refuge that is in the path of one of those miles, you would see every last mile as important.

So long as we sit quietly by and watch the border wall go up, we are irrelevant in the eyes of Congress. If we do not make our voices heard, and make our elected officials listen, mile upon mile of wall will be built. And while we can rail against the politicians who sacrifice our home for political gain, if we are silent we own a portion of the blame.