The Law Already Allows Donald Trump to Build the Wall

Byron York, Washington Examiner, December 7, 2016

There’s no shortage of people telling Donald Trump he can’t build a wall on the U.S.-Mexico border. And maybe, in the end, he won’t do it. But at the moment Trump takes office, he will have the legal authority and the money he needs to get started on the wall. Yes, there will be obstacles—what’s the over/under on the number of lawsuits that will be filed trying to stop it?—but the fact is, the law is already in place that will allow Trump to go forward.

As in other areas of immigration enforcement, Trump will be able to effect radical change simply by following the law. In this case, it is the Secure Fence Act, passed in 2006 with bipartisan support—283 votes in the House and 80 in the Senate, including then-Sens. Barack Obama and Hillary Clinton.

The law ordered the Secretary of Homeland Security, within 18 months of passage, to “take all actions the secretary determines necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States.”

Specifically, the law called for the usual mix of high-tech sensors, cameras, border checkpoints, vehicle barriers and other measures along the U.S.-Mexico border. And then it ordered Homeland Security to “provide for [at]* least 2 layers of reinforced fencing” and “the installation of additional physical barriers” for hundreds of miles on the southern border. For example, it ordered double fencing for the area “10 miles west of the Calexico, California port of entry to 5 miles east of the Douglas, Arizona, port of entry”—a span that would cover nearly the entire Arizona-Mexico border. The law ordered heavy fencing in other border areas as well.

The law’s reference to “at least” a double-layer fence, plus its mention of “additional physical barriers,” suggests that Congress specified the minimum amount that Homeland Security should do—not the maximum.

“The Secure Fence Act and the later amendment give full leeway to the president to determine what kind of fencing is appropriate, as long as it enhances security,” noted Jessica Vaughan of the Center for Immigration Studies, which favors lower levels of immigration. “Clearly, action to upgrade the existing fencing and add additional barriers is authorized. If the president and his border security team want a wall instead of a fence, or an electric fence instead of a double chain link, or a fence of flowers instead of steel, they can do it.”

The “later amendment” to which Vaughan referred was Congress’ decision the next year, 2007, to partially back away from what it had done. Lawmakers passed an amendment sponsored by Texas Republican Sen. Kay Bailey Hutchison which said “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.” Hutchison’s amendment gave Homeland Security the discretion to do less, but, as with the original law, did nothing to stop the department from doing more.

And that’s where the Trump administration comes in. If Trump directs the secretary of homeland security to build a wall, then work can begin.

There’s a lot of work to do. Last year, in response to questions from Republican Sen. Ted Cruz, DHS revealed that there are only 36.3 miles of double-layer fencing along the 1,954-mile Mexican border. Secretary Jeh Johnson told the Senate that 1,300 miles of the border, or 66.5 percent, have no fencing at all; 299.8 miles, or 15.3 percent, have vehicle fence; 316.6 miles, or 16.2 percent, have pedestrian fence, and 36.3 miles, or 2 percent, have double-layer fencing. Johnson also said there is no work being done on any additional fencing.

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