Not far from where I grew up in South Texas, Spanish moss drips from the trees at the Santa Ana Wildlife Refuge like a bridal veil. At another nature preserve to the west, an observation tower lets hikers climb above those trees to peek into Mexico. West of that, near yet another of the region’s sanctuaries for native plants and animals, the Biden administration says it will build almost 20 miles of new border wall, breaking a promise the president made on the campaign trail.
Contrary to what President Biden claims, federal law does not require that he build the border wall.
Biden says he doesn’t want to build the wall and admits that it won’t stop migrants. And yet the administration claims not to have a choice. “The money was appropriated for the border wall,” the president told reporters. “I can’t stop that.” His secretary of Homeland Security, Alejandro Mayorkas, added, “The law requires the government to use these funds for this purpose.”
They’re wrong.
After a government-funding faceoff that shut down the federal government for 34 days in 2018 and 2019, Donald Trump signed a bill that included $1.4 billion for border barriers. That bill, signed in February 2019, prioritizes flashy designs like the concrete and steel bollards that then-President Trump liked over the high-tech digital surveillance techniques Democrats prefer.
But it said nothing about a requirement.
The law is clear that the money “shall be authorized.” It doesn’t say that the money must be spent. Later in 2019, first in June, then in July, Congress passed other bills to fund the Department of Homeland Security (DHS), but neither of those laws touched border wall construction.
Just before the year ended, Congress passed yet another budget bill. It again set aside $1.4 billion for border wall construction. This time it specified that the money “shall be available only” for “construction of a barrier system along the southwest border.”
If Biden truly thinks the border wall is misguided, or even if he just thinks he ought to keep the promise he made, his administration should put up a fight rather than blame Congress.
The administration could start by slow-walking compliance with the 2019 budget bills. Since Congress wants money spent on a border barrier system, it’s not a stretch to say that it meant some of that money to be spent on projects that don’t involve pouring more concrete and erecting steel pillars where currently there are none. In fact, DHS already defines a border barrier system to include levees, lights, roads, water drainage infrastructure and steel columns. Given the leeway Congress has given it, DHS could spend money on fixing the problems that construction of the existing wall creates.
In Arizona, for example, wall construction dried up a well. In the Río Grande Valley, it’s harmed key habitat for the endangered ocelot, bringing the wild cat closer to extinction. A government report issued last month lists many harms to wildlife and the natural environment — and it notes that many aren’t getting any better because there isn’t any money for it.
Biden administration officials can also brush up their legal arguments. Texas is already suing over the border wall, claiming that the federal government is required to build more wall. Over the summer, the U.S. Court of Appeals for the Fifth Circuit, one of the most conservative appellate courts in the country, took seriously the state’s claim that expanding a segment of border wall that stretches through Starr County would reduce the number of migrants who “seek driver’s licenses, education, and healthcare from Texas.” Now that case is sitting before Judge Drew Tipton, a Trump appointee who has sided with Texas on other immigration lawsuits and is likely to side with Texas again.
That doesn’t mean the Biden administration is out of legal options. Seven days after the Fifth Circuit issued its decision, the legal tide turned when the Supreme Court rejected the same appellate court’s decision in another dispute involving the Biden administration’s immigration policies. In that case, Judge Tipton had allowed Texas to sue DHS over its immigration law enforcement strategy and the appellate court had agreed. Even though Texas had pointed to the same types of injuries as in the current border wall case, an ideologically mixed coalition of Supreme Court justices concluded the state couldn’t sue the federal government over its immigration policies.
“The Executive Branch must prioritize its enforcement efforts,” Justice Brett Kavanaugh wrote in the court’s majority opinion. Courts shouldn’t get into the business of forcing DHS to choose one immigration policy preference over another, Kavanaugh explained. Under a law that Congress enacted in 1974, only the Comptroller General of the United States can sue the federal government over a refusal to spend money; Texas is clearly not the Comptroller General.
With the law on its side, the Biden administration has no excuse for caving. Spend the money or don’t spend the money — just don’t plant another steel bollard into the ground.
César Cuauhtémoc García Hernández is a law professor at Ohio State University and the author of “Welcome the Wretched: In Defense of the ‘Criminal Alien’” and “Migrating to Prison: America’s Obsession with Locking Up Immigrants.”