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A wall against his will?

The legal issues behind Biden’s border wall expansion

Immigrants cross over razor wire after crossing from Mexico into Eagle Pass, Texas, September 28. Getty Images/Photo by John Moore

A wall against his will?

Chicago aldermen visited El Paso, Texas, this week with a message for border crossers.

“What we have shared with the mayor of El Paso is that there is no more room in Chicago,” Alderman Will Hall said, according to WLS-TV Chicago.

Other Democratic sanctuary cities are overflowing with migrants, putting pressure on President Joe Biden to secure the border. On Oct. 4, the Department of Homeland Security (DHS) cleared the way to build 20 more miles of border wall in Texas despite Biden’s campaign promise in 2020 that “there will not be another foot of wall constructed in my administration.”

The president described his decision to expand the wall as a legal obligation to spend funds that were appropriated in 2019. When asked by reporters whether a wall was an effective solution, he still replied, “No.” Nevertheless, Biden is waiving 26 federal laws to expedite the construction.

Former President Donald Trump also waived a swath of regulations to build the wall. Biden canceled those waivers upon entering office and tried to avoid using the funds. He directed the Defense and the Homeland Security departments to develop a plan to reallocate the 2019 appropriation.

In June 2021, the Government Accountability Office declared that Biden’s delays in spending were legal, but the money could not be reallocated. Biden repeatedly asked Congress to rescind the funds, but it did not.

This past June, DHS quietly authorized the addition of 20 miles of steel bollard barriers in the Rio Grande Valley. Homeland Security Secretary Alejandro Mayorkas also defended the action as legally necessary, explaining that DHS was required to use the 2019 funds for their appropriated purpose. He clarified in a statement later that day that the administration hasn’t changed its position on the efficacy of a border wall, it is simply bound by law to act.

But the administration was not bound by law to waive federal regulations to speed up the process. In announcing the change earlier this month, Mayorkas said there is an “acute and immediate need” to prevent border crossings. U.S. Customs and Border Protection has encountered over 245,000 immigrants trying to enter the United States in the Rio Grande Valley this year. Texas has bused tens of thousands to migrants to sanctuary cities.

The waived laws include environmental and public safety regulation including the Safe Drinking Water Act, the Endangered Species Act, and the Federal Land Policy and Management Act. Many of the waived regulations would slow down the construction process by requiring the government to consult with wildlife protection or Native American tribes before construction. The DHS secretary has special authority to waive regulations when he decides speeding up barrier construction is necessary.

Many in the president’s own party are saying the administration has broken trust.

“Republicans may have pushed for this funding in 2019, but President Biden did not have to take extra steps to make it easier to build a border wall in South Texas,” U.S. Rep. Greg Casar, D-Texas, wrote on social media.

The sudden waiving of regulations also rattled environmental groups, who complained about environmental damage to southern Texas during Trump’s border wall construction.

“It’s disheartening to see President Biden stoop to this level, casting aside our nation’s bedrock environmental laws to build ineffective wildlife-killing border walls,” said Laiken Jordahl in a statement from the Center for Biological Diversity.

Republicans are celebrating the renewed wall construction. Sen. Chuck Grassley, R-Iowa, posted on the social media platform X that the migrant crisis in “big blue cities” woke up the Biden administration to the need for a wall.

Earlier this month, New York City Mayor Eric Adams visited Latin America to beg migrants to stop traveling to to his city. Denver has spent over $26 million on migrants this year. San Diego receives roughly 500 migrants a day with inadequate shelter space.

On Wednesday, Sen. Marco Rubio, R-Fla., wrote a joint letter to Biden asking him to resubmit a supplemental funding request so that it can include earmarks for wall construction beyond the 20 miles already approved.

Clara York

Clara is a 2023 World Journalism Institute graduate and a senior journalism major at Patrick Henry College.

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