LEGISLATION

Two weeks before the 2006 midterm elections, President Bush signed into law the Secure Fence Act. The Secure Fence Act directed the Department of Homeland Security to construct “[at] least 2 layers of reinforced fencing, the installation of additional physical barriers, roads, lighting, cameras, and sensors” along large stretches of the U.S.-Mexico border. The Border Patrol estimates that the fencing will total 850 miles. 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 Border Patrol has been erecting fences along the border south of San Diego since 1990. In 1996 the Illegal Immigration Reform and Immigrant Responsibility Act was passed, which included authorization to construct 3 layers of reinforced fencing starting in the Pacific ocean and extending 14 miles inland. In order to carry this out the Border Patrol proposed to fill a deep canyon with more than 2 million cubic yards of earth scraped from nearby hillsides. In 2004 the California Coastal Commission objected to the environmental damage that this would do to the Tijuana River National Estuarine Research Reserve and state and federally listed threatened and endangered species. The Sierra Club and other groups also sued. Construction of the “triple fence” 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 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 to extend triple fencing through the Tijuana River National Estuarine Research Reserve near San Diego. The Real ID Act further states that the Secretary’s decisions are exempt from normal judicial review.



Chertoff's power to unilaterally waive all of the nation’s laws extends to the reinforced fencing mandated by the Secure Fence Act. On January 19, 2007, he waived even more laws to allow for construction of 15 foot tall walls made of scrap steel through federal lands in southern Arizona. The broad language of the Real ID Act allows the Homeland Security Secretary to waive any law that might slow construction, including those that would normally protect private landowners.

Despite the stated intent of the Secure Fence Act, border walls will not stop immigrants or smugglers from entering the United States. The walls built in California may reduce illegal crossings in their immediate vicinity, but the number of people who are in the United States illegally has steadily increased. The Congressional Research Service stated that “increased enforcement in San Diego sector has had little impact on overall apprehensions.” Entirely unaffected are the fully half of those living in the country illegally who first entered the U.S. lawfully and then overstayed a visa. Department of Homeland Security spokesman Russ Knocke recently said that “ fencing slows someone down even by a few seconds before they can find their way to a house, a business, a car, some transportation system and get away.” The Border Patrol says that the walls mandated by the Secure Fence Act will only slow a crosser down by 5 minutes.

The Borderlands Conservation and Security Act (HR 2593), introduced by Rep. Raúl Grijalva, whose southern Arizona district would be directly impacted by the border walls, would remedy many of the Secure Fence Act’s most destructive aspects. It would replace the Secure Fence Act’s requirement of “2 layers of reinforced fencing” with flexibility in determining whether walls, virtual fences, or other options are the best way to address border security. The Department of Homeland Security would be required to consult with private landowners, municipalities, and state and federal land managers during the decision making process. Environmental concerns would become a priority. Most importantly, it would repeal the provision of the Real ID Act that gives one administration appointee the power to unilaterally waive all of our nation’s laws. Congress should immediately take up this important legislation before walls rip apart farms, communities, and nature preserves.

 

Contact: noborderwall@yahoo.com

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