WOLA: Advocacy for Human Rights in the Americas

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10 Feb 2021 | Commentary

From ‘Pause’ to ‘Reverse’: What Lies Ahead for Stopping Trump’s Border Wall and Fixing the Damage

“Building a massive wall that spans the entire southern border is not a serious policy solution,” read a January 20 proclamation from just-inaugurated President Joe Biden. “It shall be the policy of my Administration that no more American taxpayer dollars be diverted to construct a border wall.”

President Biden ordered builders to stop work on Donald Trump’s border wall by January 27, which they eventually did. The dynamiting and earth-moving equipment are silent now, and will remain so for at least 60 days.

During that period, the new administration will review contracts that its predecessor signed with construction companies—documents that had been neither public nor shared before—and figure out the “administrative and contractual consequences” of terminating them. During the 60-day pause, a multi-agency process will develop “a plan for the redirection of funds” for wall-building that were not spent. On February 1, the White House asked the Supreme Court to postpone arguments, scheduled for this month, on some of Trump’s transfers of Defense Department money for wall-building.

All of this should mean the end of all construction of Trump’s border wall. But that’s not certain yet. Getting there will require some firm decision-making, and some interpretation or even rewriting of legislation. And the Biden administration has made no commitments yet about taking down what the Trump administration built, particularly in areas where it is doing the most damage. WOLA hopes that it will move quickly in that direction.

What got built, and what funds remain

The Trump administration managed to build 455 miles of wall along the border before January 20, leaving 703 of the U.S.-Mexico border’s 1,970 miles fenced off in some way. From past U.S. Customs and Border Protection (CBP) updates we estimate that, of those 455 miles:

  • 49 miles were built where no fencing existed before;
  • 158 replaced existing, shorter pedestrian fencing;
  • 193 replaced existing vehicle barrier; and
  • 55 miles are new or replacement secondary fencing.

In all, then, the Trump administration built about 242 miles of fencing in places where it had previously been possible to walk across the border. The vast majority of the 455 miles are in Arizona and New Mexico.

The full amount of funding devoted to construction has totaled $16.45 billion between fiscal years 2017 and 2021. It was to build about 794 miles of wall. (That would be $20.7 million per mile.) Congress specifically approved only about one third of that amount ($5.8 billion). Trump wrested the remaining two-thirds from the budgets of the Defense and Treasury Departments.

Of that $16.45 billion, the amount that remains unspent—or that could be clawed back by canceling construction contracts—remains unclear. It’s one of the main things the new administration is trying to find out.

We’ve seen some ballpark estimates for unspent funds in recent press coverage, which don’t exactly coincide. The Associated Press, citing a Senate Democratic aide, reported that as of January 15 the Trump administration had contracted out $10.8 billion in work, of which $6.1 billion had been spent. The Guardian reported on January 28 that “an estimated $11.5bn of contracts were signed.” A mid-December Washington Post story cited U.S. Army Corps of Engineers estimates showing “there will be about $3.3 billion in unused funds in the project’s accounts on January 21.”

At the jaw-dropping cost of $16.45 billion for the wall, the U.S. government could have funded the following: 

  • An additional $411.25 in COVID-19 relief to each of the 40 million Americans who live in poverty.  
  • Coverage through the Children’s Health Insurance Program (CHIP) for every child in the country from low or moderate-income families (at the estimated cost of $150 per child per year). 
  • Debt forgiveness for over 500,000 students (assuming an average student loan debt burden of $32,731). 
  • At $200 per acre, the U.S. government could have planted trees on over 82 million acres (nearly a quarter of the entire country), offsetting the effects of climate change.

In-depth: Where the money for the wall came from

Category #1

  • $3.6 billion were taken in February 2019 from the Defense Department’s military construction funds. This was to build about 175 miles of border wall, of which about 87 had been completed as of January 8.
  • In late 2018 and early 2019, Donald Trump allowed parts of the federal government to shut down for 35 days rather than sign a 2019 budget bill that didn’t meet his demand for $5.7 billion in border wall funding. Trump finally gave in, but shortly afterward—on February 15, 2019—he declared a “national emergency” that, he alleged, gave him the authority to transfer money from the Defense budget to build border barriers.
  • The Pentagon saw $3.6 billion of its military construction plans cancelled or delayed as funds were transferred to the Homeland Security Department to build fencing.
  • Though both houses of Congress twice voted to disapprove this “emergency,” they could not muster the two-thirds vote necessary to override Trump’s vetoes of their disapprovals.
  • A challenge to this emergency continues to work its way through the courts, but the Supreme Court allowed building to continue while this happens.
  • Because these funds were not appropriated by Congress, President Biden is not required to keep spending this money—and his January 20 proclamation, notified to Congress on February 10, rescinds Trump’s emergency declaration.

Category #2

  • $6.331 billion ($2.5 billion in 2019 and $3.831 billion in 2020) were transferred from elsewhere in the Defense Department budget into the Department’s counter-drug account. To do so, Trump used a recurring authority in the Defense Appropriations law (Section 8005), which allows the president to move up to $4 billion each year between Defense budget accounts to respond to “unforeseen” requirements. This maneuver was to provide funds to build about 291 miles of border wall, of which about 256 had been completed as of January 8.
  • The Defense budget can be used to build walls, as long as the Department can claim there's a counter-drug reason for doing so. Section 284(b)(7) of Title 10, U.S. Code, a piece of drug-war legislation that first passed a Democratic-majority Congress in 1990, allows the Defense Department to use its budget for “construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.”
  • The Trump administration filled up the Defense counter-drug account with wall-building money by transferring it, in 2019 (here and here) and 2020, from many other defense priorities, ranging from equipment to aircraft procurement and much else.
  • A challenge to this “unforeseen” transfer continues to work its way through the courts, but the Supreme Court allowed building to continue while this happens.
  • Because these funds were not appropriated by Congress, President Biden is not required to keep spending this money.

Category #3

  • $601 million were taken in 2019 from the Treasury Department’s Asset Forfeiture Fund, the proceeds from assets seized from accused criminals or terrorists. It’s not clear how many miles of wall this has built or may build, as CBP’s reporting lumps this money together with congressionally appropriated money for 2019 discussed in the fourth category.

Category #4

  • Congress appropriated $5.841 billion in the Homeland Security components of the federal budgets for 2017 ($341 million) and 2018-2021 ($1.375 billion each). These appropriated funds, plus the Treasury funds in category three, were to pay for about 328 miles of wall (extrapolating from CBP’s most recent update and a January 20 Washington Post estimate), of which 110 miles have been built.
  • Nearly all of what remains unbuilt from this category is in Texas, where most land abutting the border is privately owned.
  • Because these funds were appropriated by Congress to build a “barrier system” at the border, the Biden administration needs to figure out how to avoid spending them on Trump’s border wall. These provisions, the Washington Post reported, “would potentially oblige the Biden administration to complete up to 227 additional miles of border wall.”


The four categories of border wall funding all add up to $16.373 billion (about $77 million short of the amount that a Senate staffer cited to the Associated Press on January 22). It would pay for 794 miles of wall, of which 455 were built.

Rescinding or redirecting money

Nothing in the law stops the Biden administration from calling a total halt to spending what remains of the $10.532 billion that came from the Defense and Treasury Departments’ budgets. Congress did not direct the executive branch to spend this money, and in fact refused President Trump’s demands that it do so. President Biden can stop the flow of this money and negotiate ends to existing contracts with construction companies, without involving Congress.

Spending what remains of the $5.841 billion in directly appropriated wall-building money is another question: the law requires that it be spent for a “barrier system” at the border. These funds must be spent within five years, appropriations staff tell us, so there is no great rush to decide how to move forward. There appear, though, to be two broad options for avoiding further wall-building with this money:

  1. Ask Congress to change the law, rescinding or repurposing the remaining money in a future appropriations bill. Funds could be either canceled or repurposed for other needs, like processing a flow of asylum seekers or remediating the environmental damage that the wall-building project caused. This could happen in the 2022 Department of Homeland Security appropriation, or even in a 2021 supplemental appropriation, like the COVID-19 relief package likely to move through Congress by mid-March. Rescission of past border wall money is more possible, though far from guaranteed, now that Biden’s party has majority control of both houses of Congress.
  2. Reinterpret what the legal language “construction of barrier system along the southwest border” means. Conversations with Democratic legislative staff have not ruled out that this could mean spending money on downgrades to existing wall in some sectors: for instance, replacing high bollard fencing with vehicle barrier that would allow floodwaters to flow and migratory animals to cross. A frequent proposal is to use the money instead to install surveillance and other technologies, though this is controversial, as noted below.


Exiting contracts

The January 20 presidential proclamation calls for “consideration of terminating or repurposing contracts with private contractors engaged in wall construction.” What that involves will require more knowledge of what the contracts actually say about cancellation terms.

Government contracts usually allow the government to terminate for “convenience.” Still, this may involve paying fees to the contractors, as well as paying for expenses already committed, and the expenses of withdrawing from the projects. The Trump administration’s last acting CBP commissioner, Mark Morgan, said that this would be “a very lengthy, messy process” in which “we’re going to have to go into settlement agreements with each individual contractor.”

Again, we don’t yet know how much border wall money has gone uncontracted, much less what remains unspent in the contracts. But a mid-December Washington Post report revealed estimates of about $700 million in “demobilization” fees that could end up being paid to contractors whose work gets canceled. That article also estimated $3.3 billion in unspent funds, which would mean a net savings of $2.6 billion for the U.S. Treasury.


Halting eminent domain proceedings

Much of the unspent money, especially the portion that Congress appropriated, is for wall segments in Texas, especially along the Rio Grande from Laredo to the Gulf of Mexico. Here, the vast majority of land along the borderline is privately owned.

The Trump administration had been working to seize this land through eminent domain proceedings. (The 5th amendment of the Constitution allows private property be taken for public use with “just compensation.”) As of July 2020, the U.S. Government Accountability Office (GAO) reported, “the federal government acquired 135 private tracts, or sections, of land and is working to acquire 991 additional tracts.” Of these 1,126 tracts, 1,090 are in south Texas.

Some of these attempted land seizures have been traumatic for families who have held property for generations, and bitter lawsuits are underway even during the pandemic. The Trump administration had even signed construction contracts to build walls on land that the federal government doesn’t own yet, causing costly delays.

The Biden administration should be quite able to desist from many of these eminent domain claims. Some will be complicated, though, by the need to rescind or reinterpret past congressional appropriations, and by the existence of half-built walls in some areas.


Remediating environmental and cultural damage—including wall downgrading and removal

Provisions in the Real ID Act of 2005 allowed the Trump administration to waive 84 federal laws in order to build much of its 455 miles. These, most often, were laws passed to protect the environment or to protect the rights of Native American people. “Constructing a wall has stripped environmental, cultural and health protections from border communities, bulldozed through Tribal sites and burial grounds, and left irreversible scars on wildlife habitat and local towns,” Gloria Smith, the Sierra Club’s managing attorney, said in early February.

By blowing through environmental, cultural, and other laws, Trump created the equivalent of a Superfund site along many segments of the border. While not necessarily “toxic” to humans, the construction was intensely damaging to fragile ecosystems. Mountains were dynamited. Desert springs and groundwater were siphoned to mix concrete. Trenches were dug and filled with steel-reinforced concrete. Steel bollards blocked off endangered species’ migratory paths. Centuries-old cacti and trees were felled for 150-foot wide “enforcement zones” with roads. Sites held sacred by the Kumeyaay people in California and the O’odham people in Arizona were desecrated.

“Some of North America’s most biodiverse landscapes—including the Otay Mountain Wilderness Area in California, the Sonoran Desert and the Sky Islands in Arizona, New Mexico’s Chihuahuan Desert and the Lower Rio Grande Valley in Texas,” were damaged, reports Scientific American. By eliminating the requirement to perform careful environmental impact studies, the Real ID waivers have prevented us from collecting baseline data, so we may never know the true extent of the damage.

The Biden administration hasn’t said what it might do about remediating or reversing this damage, which would certainly require demolishing or downgrading segments of Trump’s wall. A coalition of environmental groups active at the southwest border is nearing completion of a geo-referenced list of priority sites, which they plan to publicize soon. During his January 19 confirmation hearing, Homeland Security Secretary Ali Mayorkas said he hadn’t “looked at that specific question” yet.

Remediation of border wall damage is an urgent need. The Biden administration can begin the work by rescinding the REAL ID waivers, restoring protections to air, water, endangered species, and Native American people’s rights.

It can continue by funding—perhaps using unspent border wall money—a survey of the damage, as the Guardian put it: “Deploy a team of experts including hydrologists, ecologists, zoologists and botanists, community and tribal advocates to assess the damage, and formulate a plan to restore critical habitat, waterways, wildlife migration corridors and tribal cultural sites.”

Further, it can repurpose unspent funds to undo the damage. First, this means restoring fresh water sources and migratory routes, to the extent that they can be restored. Next comes downgrading or removal of wall segments, along with the cleanup of tons of metal and concrete in the many areas where the 30-foot barrier is doing great harm and no good.


The trouble with “smart walls”

Statements from Biden administration officials and conversations with congressional staff show robust support for investing, instead of a 30-foot barrier, in a “smart wall”: a network of sensors, surveillance devices, scanners, biometric data collectors, lights, roads, and other technology that can detect suspicious border-crossing activity.

In broad terms, a “smart” wall is preferable to a “dumb” wall, and technology is particularly needed at land ports of entry, the official border crossings where the vast majority of illegal drugs enter the United States and illegal U.S. weapons enter Mexico. Between the ports of entry, though, a “smart wall” can cause new problems.

Always-on lighting can disrupt migratory and other wildlife activity in the southwestern deserts’ surprisingly biodiverse ecosystem. More immediately, a “smart wall” raises privacy and civil liberties concerns. These concerns are especially acute at a time when our border security agencies—CBP and its Border Patrol component—are showing alarming characteristics of politicization, suffer from adversarial relationships with border communities and communities of color, and too often enjoy or expect impunity for human rights abuse.

“Frankly, there are privacy concerns,” Vicki Gaubeca of the Southern Border Communities Coalition told Bloomberg in January. “We saw in racial justice protests [when border agents got sent to places like Washington, D.C. and Portland, Oregon] how they use some of these technologies to surveil crowds. I think that that should give us pause.” While these agencies continue to resist reform, it makes no sense to trust them with powerful and invasive new technologies like more drones, communications interception equipment, or facial recognition applications.

The way forward: value our border communities

WOLA commends the Biden administration for taking these crucial first steps toward stopping Donald Trump’s border wall. Along with border communities and other advocates and experts, we hope to continue the conversation about the way forward during the 60-day period in which agencies draw up the plan for canceling contracts and redirecting funds.

We hope that 2021 will be the year when wall-building definitively stops, and when remediating the damage begins. And we hope that this becomes part of a larger change in the United States. We need to start viewing our southwest border much differently.

Too often, the U.S-Mexico border gets viewed as a far-off wilderness and a source of threats. As a vulnerability needing to be fortified. It’s time for that vision to change. Our border should be seen as a binational asset. We need to value it, not wall it off, and we need to listen to the people who live there.

“Border communities in the United States are economically vibrant, naturally beautiful, and culturally diverse,” the Southern Border Communities Coalition tells us. “They are places of encounter, opportunity and hope.” WOLA hopes that the Biden administration’s initial steps will not just stop the wall, but bring border communities’ perspectives into the conversation and move us toward this brighter vision of our borderlands.