WOLA: Advocacy for Human Rights in the Americas

(Photo: Tweet from Acting Commissioner Mark Morgan @CBPMarkMorgan)

29 Oct 2020 | Commentary

400 Miles of Harm: There is Nothing to Celebrate about Border Wall Construction

Today, the acting Homeland Security (DHS) secretary is in Texas’s Rio Grande Valley to celebrate what the Trump administration is hailing as a milestone: 400 miles of new border wall construction since Trump’s January 2017 inauguration. As the administration celebrates this “achievement,” we need to take a clear-eyed look at this costly boondoggle. It has become a monument to failure, xenophobia, human rights abuse, and environmental damage—and it must get taken down expeditiously.  

As of October 19, U.S. Customs and Border Protection (CBP) was reporting that 371 miles of new wall had been built. Using data from a regular CBP status update, we conclude that, of those 371 miles:

  • 16 were built where no fencing existed before;
  • about 170 were built where only “vehicle barrier” (structures that could block a vehicle but not someone on foot) existed before;
  • about 135 were built to replace older, shorter fencing; and
  • 50 miles are new or replacement “secondary wall” built parallel to existing fencing.

As that status update indicates, this has been built—and continues to be built—at a cost of approximately $15 billion in 2017-2020 funds. (Our best current estimate is $15.067 billion.) 70 percent of that money was not approved by the U.S. Congress, as our constitution dictates. As WOLA detailed in January, Donald Trump wrested most of that from the Defense Department’s budget by declaring a “national emergency.”

It seems ridiculous even to need to point this out, but not a dime of this has been paid by Mexico, as Donald Trump continues to falsely declare, nor is there any plan to recover the money, whether through tariffs, border-crossing fees, or any other mechanism. The U.S. taxpayer has built these 400 miles at a projected cost of $20.4 million per mile. Even without cost overruns, that’s nearly $70 from every U.S. household.

Much of this construction required the administration to waive dozens of laws protecting the environment, historical sites, Native American lands, and proper administrative procedure. The REAL ID Act, which allowed existing laws to be pushed aside for barrier construction, has been invoked 31 times since its 2005 passage; 26 of those have occurred since 2017.

DHS and its contractors have been racing to build as much wall as possible before Trump’s term ends, hitting a pace of more than a mile per day. Much of this construction has been in terrain where it is easy to rack up big mileage: flat, government-owned land in the deserts of Arizona and New Mexico. As the Wall Street Journal noted, much of this terrain is remote desert “where illegal border crossings have been relatively low in recent years.”

These are areas where few people cross, and where, because of their remoteness, the wall doesn’t pose much of an obstacle to crossers. “A wall may slow someone down for the 10-15 minutes it takes to climb over, but those 10-15 minutes barely impact a border crosser’s head start in rural border areas,” WOLA observed in 2018. And walls are especially useless when, as has been the case since 2014, many if not most apprehended migrants are people seeking merely to set foot on U.S. soil and be apprehended in order to petition for asylum or protection.

The Damage

There is nothing to celebrate about the border wall construction. There is no evidence to suggest that the wall improved security or deterred migrants. It has wasted resources while doing incalculable damage to human rights, our system of checks and balances, and border communities and ecosystems. 

The damage includes environmental harm. Construction, enabled by multiple waivers of the Endangered Species Act, is cutting off migratory corridors for jaguars, ocelots, black bears, bighorn sheep, coati, mountain lions, javelina, raccoons, hooded skunks, mule deer, and smaller species. It has destroyed numerous decades-old saguaro cacti on national parkland. It is harming fragile, scarce freshwater sources like the Quitobaquito oasis in Arizona’s Organ Pipe National Monument—home to unique species of turtle and fish and being drained, via nearby wells, to mix cement for wall foundations—and the San Pedro River in southeast Arizona, one of the largest undammed rivers remaining in the southwest United States. Walls will trap debris during monsoon desert rains, risking flooding that could even uproot the barrier itself. Meanwhile, dynamiting and similar demolition are ongoing in the nearby Guadalupe Canyon region, forever gouging scars into stunning, rugged landscape that was already impenetrable to border crossers. In Texas, wall construction threatens to torpedo a 40-year effort to consolidate a Lower Rio Grande Valley Wildlife Refuge.

The damage includes harm to Native American culture and communities. As construction crews have approached their lands, the Tohono O’odham in Arizona and the Kumeyaay in California—both of whose lands span the border—have staged several recent protests, including acts of civil disobedience and some arrests. The Quitobaquito spring is a sacred ancestral site for the O’odham, and there are several archeological sites in the wall’s path. The Kumeyaay have filed suit to stop the desecration of sacred burial sites. All of this building required DHS to waive laws protecting Indigenous lands, and there was no meaningful attempt to consult with Native American communities about construction plans.

The damage includes harm to property rights. In Texas, where the border follows the Rio Grande for 1,200 miles, the majority of land abutting the river is privately held: nearly 1,000 landowners stand in the wall’s potential path. The Trump administration has aggressively launched eminent domain processes to seize this land in order to build fencing. This has meant filing suits against middle-class residents, some of whom have held their plots for generations, against an orphanage in Laredo, and has accelerated the pace of litigation during the pandemic.

The damage includes unnecessary and preventable deaths of migrants. Since the 1990s, barrier construction has channeled much undocumented migration to segments of the border distant from population centers, like deserts and ranchlands. In these treacherous territories, well over 7,000 have died on U.S. soil, primarily of dehydration and exposure, during this century. More fencing will mean more diversion to these areas, and recovered remains hit a seven-year high in Arizona during the 2020 fiscal year. The new, 30-foot-high wall can also be deadly when migrants are desperate enough to climb it. WOLA is aware of two cases of women, one of them pregnant, who perished near El Paso in 2020 of falls from atop the wall.

The damage includes harm to relations with neighbors to the south. WOLA noted in 2018, “The border wall sends a hostile message to allies in Latin America. The wall would carry a steep diplomatic cost, particularly in U.S. relations with Mexico. It would detract from international cooperation needed to fight against drug trafficking, terrorism, and other issues.” It did and continues to do so. Tensions around the border wall were a principal reason why Mexican President Enrique Peña Nieto paid no visits to Washington for bilateral meetings during his final two years in office. As long as it stands, Trump’s wall sends a message that the United States would rather wall off Latin America than work with the region to face multilateral challenges; that the United States believes Latin America is inferior. 

The damage includes harm to our democracy and rule of law. The U.S. Constitution gives Congress the power of the purse. The president, unlike a king, cannot spend taxpayers’ money without the approval of citizens’ representatives. In late 2018 and early 2019, despite partially shutting down the U.S. government for 35 days, Donald Trump failed to convince the U.S. Congress to appropriate more than a base level of $1.375 billion for wall construction. Instead, he explicitly went against the will of Congress by declaring a “national emergency.” He has since raided at least $9.9 billion from the Defense Department’s budget to pay for most of what has been built.

This is a stunning distortion of the 1976 National Emergencies Act, which allows a president to transfer funds in exceptional circumstances. This law gives Congress the ability to challenge the emergency declaration every six months, by passing a joint resolution. A 1983 Supreme Court decision allows the President to veto this resolution; the emergency declaration would then remain in place unless two-thirds of both houses of Congress vote to override the veto. Twice in 2019, Congress passed joint resolutions to take down Trump’s emergency declaration. Both times, Trump vetoed the resolutions. Both times strong majorities, including 26 Republican representatives and senators, voted to override the veto—but they did not reach the necessary two-thirds. The emergency declarations face court challenges working their way through the federal judiciary, but the Supreme Court has allowed wall-building to continue while the judicial gears continue to grind.

As the Republican dissenters—most of them Appropriations Committee members—noted, the border wall emergency declaration was an authoritarian usurpation of congressional power. 

The damage includes possible improprieties in contracting. A July 2020 report from the DHS Inspector-General states that the department “did not use a sound, well-documented methodology to identify and prioritize investments in areas along the border that would best benefit from physical barriers.” In other words, in its rush to build the wall as fast as possible, while waiving laws governing administrative procedure, the Trump administration increased the risk that taxpayers’ money would be spent wastefully.

We’ve seen much evidence of waste in the hiring of private construction firms to build the wall. A new ProPublica investigation revealed that “more than 200 contract modifications, at times awarded within just weeks or months after the original contracts,” have increased the cost of construction by $2.9 billion over the contracts’ original amount. At $20.4 million per mile, the Trump-era wall is about five times  more expensive than that built during the Bush and Obama administrations.

Questions particularly surround one of the contractors, North Dakota-based Fisher Industries, whose president, Tommy Fisher, is an energetic backer of the president who has praised him in frequent Fox News appearances. Through cronyistic ties to Trump’s associates, Fisher “has upended the federal procurement process to become Trump’s go-to builder at the border,” as The Washington Post put it, winning over $2 billion in wall-building contracts. The Defense Department Inspector General has been auditing one of those contracts, valued at $400 million, since December. 

The president’s pet wall-building project is doing tragic damage on many fronts. It does not make us safer. It will go down as a monument to populist lies, to xenophobia, and to unaddressed flaws in our democratic system. Regardless of the outcome of the November 2020 election, the United States must take down this monument to failure, starting with the segments that do the greatest harm to the environment, to Native American communities, to private property holders, and to our identity as a good neighbor that offers fair, due process to those seeking protection.