Trump cited the Secure Fence Act in his executive order, which, in its amended form, gives the Department of Homeland Security significant discretion to oversee at least 700 miles of construction using materials of its choosing. Leaning on the statute, he authorized “the immediate construction of a physical wall on the southern border.”
The Homeland Security secretary has these charges specifically, per the order:
(a) In accordance with existing law, including the Secure Fence Act and Illegal Immigration Reform and Immigrant Responsibility Act of 1996, take all appropriate steps to immediately plan, design, and construct a physical wall along the southern border, using appropriate materials and technology to most effectively achieve complete operational control of the southern border; (b) Identify and, to the extent permitted by law, allocate all sources of Federal funds for the planning, designing, and constructing of a physical wall along the southern border; (c) Project and develop long-term funding requirements for the wall, including preparing Congressional budget requests for the current and upcoming fiscal years …
I wrote about the Secure Fence Act, its odd bipartisan origins and evolution, and how it might be used to secure funding for a wall in THE WEEKLY STANDARD this month:
A majority of Senate Democrats, including their new leader, Chuck Schumer, approved the Secure Fence Act. The legislation called for double-layer fences, “additional physical barriers,” and new surveillance equipment along five particular stretches of the southern border. Endorsing it may have amounted to necessary election-year politics. But some lawmakers didn’t just allow their votes to do the talking. “Democrats are solidly behind controlling the border, and we support the border fence,” California senator Dianne Feinstein declared at the time. She is one of seven Democrats in the upper chamber today to have supported the measure—one lawmaker short of the eight that Republicans need to meet a 60-vote threshold to secure new money for that wall. It’s a fact the majority is sure to dangle before the public as Congress takes up the issue. The substance of the matter, however, is more complicated. An omnibus appropriations bill altered the Fence Act significantly a year after it was enacted. Texas Republican senator Kay Bailey Hutchison and a Democratic House colleague pushed through an amendment requiring the federal government to consult local officials, Indian tribes, and property owners before receiving the money to build. Hutchison also secured language that struck the double-layer constraint and inserted a mandate of at least 700 miles of “reinforced fencing” somewhere along the border, eliminating any mention of the five specific areas of construction in the original legislation. The changes were sold as providing the secretary of homeland security flexibility in executing the law. But immigration hawks and the bill’s own author, New York representative Peter King, saw them as weakening the statute. The overhaul erected bureaucratic hurdles instead of a fence, critics charged, and whatever fence ended up being built was liable to be ineffective. “This was a midnight massacre. It was absolutely disgraceful,” King said in 2007.
More here.
