Citing “Acute Need,” Mayorkas Waives Multiple Laws to Construct Border Wall
FAIR Take | October 2023
Two years and nearly 8 million illegal entries after taking office, the Biden Administration last week called for the construction of border wall along sections of the southern border. On Wednesday, the Department of Homeland Security (DHS) posted an announcement in the Federal Register stating that “there is presently an acute and immediate need to construct physical barriers and roads in the vicinity of the border of the United States.” This is a 180-degree shift in messaging from the Administration, which has been staunchly against a border wall from day one.
The policy reversal actually began in June, when President Biden quietly directed the construction of 20 miles of border barriers featuring “18-foot steel bollard fence panels placed in removable concrete jersey barriers” in the Rio Grande Valley in June of this year. Then, in the Federal Register notice posted last week, Secretary Mayorkas, invoked his authority under Section 102(c) of the Illegal Immigration Reform and Immigration Responsibility Act (IIRIA), to waive 26 different laws to expedite construction. These laws include the National Environmental Policy Act (NEPA), the Federal Water Pollution Control Act, and the Administrative Procedure Act (APA).
Despite the urgency conveyed by Secretary Mayokas, the Biden Administration is now painting the renewed wall construction as an effort to follow the law and use funds as directed by Congress. When pressed by reporters in the Oval Office about the new construction, President Biden said, “[T]he money was appropriated for the border wall. I tried to get them to re-appropriate it, to redirect that money. They didn’t, they wouldn’t.”
When President Biden took office, there were two sources of funds supporting border wall construction. In February 2019, President Trump issued a proclamation, declaring an emergency at the border and authorizing the use of Department of Defense (DOD) funds for wall construction. In addition, in the Fiscal Year (FY) 2019 spending bill, Congress appropriated $1.375 billion for the construction of “primary pedestrian fencing, including levee pedestrian fencing, in the Rio Grande Valley.”
Then, President Biden, on his first day in office, issued a Proclamation terminating the state of emergency at the southern border, paused wall construction, and redirected the remaining funds to other projects. The proclamation provided, however, that the pause on construction could be lifted “where an exception is required to ensure that funds appropriated by the Congress fulfill their intended purpose.” So, while Biden was able to stop the use of funds for border wall construction, there still existed the 2019 direct appropriation from Congress dedicated to the border wall.
However, if the Biden Administration claims it is now using the money to comply with Congressional appropriations, it was apparently happy to ignore that law for nearly three years while nearly 8 million illegal aliens entered the U.S. through the southern border. Moreover, over the past three years, the Biden Administration filed lawsuits against border states like Arizona and Texas for implementing physical barriers. The entire time the Administration has been mandated to construct physical barriers, it has been making every effort not to do so, and has maintained that border walls are not effective.
However, now facing record border apprehensions with no end in sight, the more likely reason for the sudden change of heart is that the Administration hopes to appease increasingly disgruntled Democrat mayors and governors whose cities are cracking under the weight of the border crisis. The money and the political need were there.
While construction of additional border barriers is certainly a welcome change, offering kudos to the Biden Administration and DHS for “taking action” would be misguided. What’s clear is that walls do work, and the Biden Administration can’t pretend its policies at the border are effective anymore. There is also much more that needs to be done policy-wise to stop the flow of illegal migrants, alleviate pressure on CBP and Immigration and Customs Enforcement (ICE) personnel, and ease the burden that border states and Americans all over the country facing due to President Biden’s open-borders policies.