Plans to fund a wall between the United States and Mexico are starting to take clearer shape as President-elect Donald Trump prepares to take office. Politico reported this month that congressional Republicans and the new administration are contemplating a bid to appropriate money through an open-ended 2006 law authorizing the construction of fencing. The idea would save GOP lawmakers the chore of crafting new border security legislation that could earn bipartisan Senate support. After all, such a statute already received that backing a decade ago.
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.
For Republicans, then, the Fence Act presents both advantages and disadvantages. What was once seen as diluting its intent may actually add potency to the Trump administration’s goals: Free of the mandate that a barrier be double-layer fence and that it be established in specific places along the southern border, the White House has room to dream of an actual wall. Plus, the 700-mile provision is a floor—it’s a lot longer than that from Tecate to Brownsville. But the procedural obstacles remain. As Sen. Lindsey Graham put it nine years ago, “In the name of providing flexibility, I think we may end up slowing construction.” According to multiple reports, more than 600 miles of the barricade have been built, but it mostly comprises single-layer fence and roadblocks. Trump has been insistent that a stronger barrier be built with dispatch.
Naturally, key players on Capitol Hill have been tight-lipped about where they stand on the Fence Act now, as well as its application to present-day border funding. Of the seven Democrats who voted yes in 2006—Schumer, Feinstein, Ohio’s Sherrod Brown (then in the House), Delaware’s Tom Carper, Florida’s Bill Nelson, Michigan’s Debbie Stabenow, and Oregon’s Ron Wyden—only Brown’s office provided comment to The Weekly Standard. The response sidestepped the Fence Act and whether Brown would vote to fund what it authorizes, instead criticizing Trump for not providing “a single shred of evidence that Mexico will pay for the wall.” Trump has said the country would reimburse the United States, but has not offered details.
On the opposite side of the aisle, King told TWS he was looking forward to working with an administration that shared more of his views than President Obama’s has. He didn’t insist his bill was necessarily the way forward—rather, that “discussions are ongoing” about determining what path party leaders will take. “Regardless of the mechanism,” he said in a statement, “there is no doubt that we will have a willing and committed partner in the White House to do what is necessary to secure the border, a far cry from the past eight years.”
The person expected to help spearhead the effort is retired Marine general John Kelly, Trump’s pick to head the Department of Homeland Security. Kelly was reportedly eyed by the president-elect for his knowledge of Central and South America from his time as chief of the United States Southern Command between November 2012 and January 2016. He takes a holistic view of border security—much like the Fence Act itself does. “A physical barrier in and of itself—certainly as a military person that understands defense and defenses—a physical barrier in and of itself will not do the job,” he told the Senate Homeland Security and Government Affairs Committee. “It has to be, really, a layered defense. If you were to build a wall from the Pacific to the Gulf of Mexico, you’d still have to back that wall up with patrolling by human beings, by sensors, by observation devices.”
Although the immigration debate has been muted by the confirmation process of Kelly and other, more controversial nominees, as well as the GOP’s move to begin repealing Obamacare, it won’t be quiet for long. Government funding is set to expire at the end of April, at which point congressional leaders could stuff money for the border into must-pass spending legislation. How much they’d need is a matter of ambition; how much they’d get is a matter of reality. Trump estimated in February that the cost of his idea, 1,000 miles of concrete wall 35 to 40 feet high, would be $8 billion. Estimates cited by the Washington Post and the financial firm Alliance-Bernstein place the figure as high as $25 billion. What Republicans have going for them is that the Secure Fence Act, as amended, authorizes the spending of “such sums as may be necessary.” But they have to contend with annual spending caps through fiscal year 2021 established by the sequester law, making it possible they might hit a wall in their attempts to fund one.
Chris Deaton is a deputy online editor at The Weekly Standard.
