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.

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.