Another Brick in the Wall: Three Challenges to the Border Wall

In June 2015, President Trump announced his candidacy with a fiery speech in New York City. He told the country, “I will build a great wall on our southern border, and I will make Mexico pay for that wall. Mark my words.” However, in January 2018, as budget negotiations stalled and ultimately culminated in a three-day government shutdown, the likelihood of Mexico paying for “the wall” withered. The Trump administration told lawmakers that it wants $33 billion over the next decade for U.S. Customs and Border Protection. The price tag includes $18 billion to construct more than 700 miles of new and replacement barriers along the southern border.

While the fight over the budget is far from over, it is becoming increasingly unlikely that congressional Democrats will be able to avoid some concessions on border wall funding. For instance, Sen. Marco Rubio (R-FL), a key figure in the 2013 “Gang of Eight” comprehensive immigration bill, no longer believes there is political capital for a bipartisan deal to protect Dreamers. He expressed to fellow Republicans that “he believes what can become law is something far more conservative than that bipartisan bill.” Assuming he’s right, there are still three obstacles that need to be overcome before there is a “great wall” on the southern border: private property rights, environmental regulations and humanitarian concerns.

Private Property Rights

The U.S.-Mexico border is mountainous, rustic, and more than two-thirds runs through private or state owned lands, “meaning the federal government would need to purchase, seize or seek permission to use land in order to build a border wall.” When the United States seizes land pursuant its eminent domain power it is constrained by the takings clause of the Fifth Amendment of the U.S. Constitution. It reads: “nor shall private property be taken for public use, without just compensation.” The Supreme Court interprets that to mean the United States is constitutionally bound to compensate a landowner for the fair market value of his or her property. See Bauman v. Ross, 167 U.S. 548 (1897); Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 9-10 (1984) (cited by the Department of Justice website, hyperlink above). It also means that the land must be put to public use.

The federal government’s position is that acquiring borderlands is important for national security purposes, but since 2007 it has spent millions of dollars trying to resolve lawsuits brought by landowners who do not want to give up their property. Once the federal government begins the process of land acquisition, a landowner can file a suit in a federal district court contesting the amount of compensation. As of November 2017, there were more than 90 cases pending in Texas alone. The United States projects those lawsuits will cost $21 million to resolve. The government also notes that in one instance, U.S. Customs and Border Protection spent $78 million and litigated approximately 330 lawsuits to build on 211 miles of land. The border spans nearly 2,000 miles and the Trump administration has not disclosed how many properties it anticipates it will have to seize. This suggests that on top of material and labor costs there will be substantial legal costs as well.

More importantly, federal land acquisition litigation is time consuming. Not only could many cases drag out well beyond 2020, but a new administration may also opt to take no action on pending cases. For instance, the Obama administration stipulated with landowners who had proceedings brought by the prior administration. As a result, the cases laid dormant from 2008 to February 2017. Indeed, it is possible that even if the Trump administration is able to obtain funding to build the wall the bulk of the project could be postponed until well after his presidency.

Environmental Regulations

The United States government is also likely to face complicated litigation for violating environmental regulations. In October 2017, Vox reported that the 654 miles of walls and fences already on the U.S.-Mexico border have been responsible for reducing populations of endangered animals like ocelots and jaguars, lead to the construction of roads through wilderness areas, and exacerbated flooding by becoming dams when rivers overflowed. The border region is one of the most ecologically diverse areas in the country largely because it has been federally protected for so long. The Lower Rio Grande Valley National Wildlife Refuge is home to 19 federally threatened and endangered species, and 57 state protected species. Approximately 1,350 miles of borderlands remain unimpeded. However, if the Trump administration were to build the proposed 700 to 900 miles of new wall, extensive habitat destruction is inevitable.

The federal government has already taken steps to waive environmental rules for a small area near San Diego and eastern New Mexico. By using a waiver under Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the Department of Homeland Security avoided an environmental impact study required by law before building on public lands. The agency went even further and claimed that it had the statutory authority to waive all legal requirements the DHS secretary deems necessary “to deter illegal crossings in areas of high illegal entry into the United States.” Rep. Raúl Grijalva (D-AZ) and the Center for Biological Diversity disagree. The congressman and conservation group filed a lawsuit in the U.S. District Court in San Diego challenging DHS on a number of grounds. The lawsuit alleges that the waiver authority expired years ago; the authority is an unconstitutional delegation of power to the Department of Homeland Security; and the border wall violates the Endangered Species Act. A hearing in the case is scheduled for February 9, 2018.

Humanitarian Concerns

While the humanitarian concerns of a wall on the U.S.-Mexico border may mean little to the Trump administration, they mean everything to the families of individuals crossing the border. Since 2001, there have been 2,500 deaths in border patrol’s Tucson sector alone. The area spans 262 miles from the New Mexico-Arizona state line to Yuma County. Human rights organizations note that the primary cause of migrant deaths is deterrence policies like physical barriers, which drive people further into the desert. Individuals often walk 30 to 80 miles in extreme weather conditions and have little access to clean water. The reality is a border wall will do little to curb violent crime or drug smuggling, but will have a grave impact on people in desperate situations.

Writing for NBC, Dr. Victoria M. DeFrancesco Soto argues that Democrats should give Trump his wall if Dreamers can stay. She describes it as “an expensive and useless toy that he desperately wants.” And further echoes Rep. Luis Gutierrez’s (D-IL) rhetoric that “lives are more important than bricks.” Indeed, lives are more important than bricks, which is why Democrats should not be so quick to concede border wall funding. But even if they do, there are legal and political challenges that should be raised.

Update (March 10, 2018)

On February 27, 2018, United States District Judge Gonzalo P. Curiel issued an 100-page order in three consolidated border wall-environmental litigation cases. The plaintiffs’ were the People of the State of California and a coalition of environmental organizations including the Sierra Club, Animal Legal Defense Fund and the Center for Biological Diversity. The defendants were the United States, the U.S. Department of Homeland Security, Acting DHS Secretary Elaine Duke and U.S. Customs and Border Protection. At issue was whether the Department of Homeland Security could waive the Endangered Species Act, the Coastal Zone Management Act and the National Environmental Policy Act of 1969 to hasten the construction of border infrastructure.

The court denied plaintiffs’ motions for summary judgment and granted defendants’ motions for summary judgment. See In Re: Border Infrastructure Environmental Litigation, 17cv1215-GPC (WVG), Order Den. Pl.s’ Mot. for Summ. J. & Order Grant Def’s Mot. for Summ. J., Pg. 101 (S. D. Cal. Feb. 27, 2018). Drawing from the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the court concluded that Congress ceded broad authority to the Department of Homeland Security to waive laws in order to expedite border construction. The court speaking through Judge Curiel explained:

In this case, Congress enacted section 102(c), which grants the Secretary of DHS not only the discretion to waive all laws when “necessary to ensure expeditious construction of the barriers and roads” but also discretion to determine whether it is necessary to install barriers to deter “illegal crossings in areas of high illegal entry.”

In Re: Border Infrastructure Environmental Litigation, 17cv1215-GPC (WVG), Order Den. Pl.s’ Mot. for Summ. J. & Order Grant Def’s Mot. for Summ. J., Pg. 83 (S. D. Cal. Feb. 27, 2018) (Citing 8 U.S.C. §§ 1103(a) & (c)).

In its analysis, the court went provision by provision to determine if the Acting DHS Secretary violated any part of § 102 that was “clear and mandatory.” Id. at 31-56. The court held that she had not. Id. at 60. Brian Segee, a Senior Attorney at the Center for Biological Diversity, issued a statement indicating that the Center intends to appeal the order. Further, Congress has not yet authorized or agreed to provide funding for border infrastructure. Thus, despite the district court’s ruling, construction is not likely to begin anytime soon.