Breaking Down White House’s Claim It Was Forced To Build A Section Of The Southern Border Wall

Elias Atienza | Senior Reporter

White House Deputy Press Secretary Andrew Bates claimed in an Oct. 5 tweet that the White House is forced by a 2019 law to construct a section of the border wall.

The New York Times reported that the Biden administration was expanding the border wall, calling it a reversal of the White House’s position that it would not build anymore. Bates, responding to an MSNBC video reporting the decision, said in a tweet that reporting that the administration reversed itself was false.

“‘Reversal’ is absolutely false. Fact: Congress is forcing us to do this under a 2019 law. Fact: We called on Congress to cancel these funds. They didn’t. We follow the rule of law. Congress needs to stop delaying the effective border solutions  @POTUS proposed,” Bates tweeted.

Check Your Fact looked into Bates’ claim that the White House did not reverse itself but will not be issuing a rating due to the complex nature of the subject. President Joe Biden signed an executive order in January 2021 halting construction of the border wall and called on Congress to cancel border wall funding.

Department of Homeland Security (DHS) Alejandro Mayorakas said in a public notice to the Federal Registrar that he determined it was “necessary to waive certain laws, regulations, and other legal requirements in order to ensure the expeditious construction of barriers and roads in the vicinity of the international land border in Starr County, Texas.”

“Finally, in section 102(c) of IIRIRA, Congress granted to the Secretary of Homeland Security the authority to waive all legal requirements that I, in my sole discretion, determine necessary to ensure the expeditious construction of barriers and roads authorized by section 102 of IIRIRA,” the public notice reads. (RELATED: Would Imposing Fees On Remittances Help Pay For The Border Wall?)

A DHS spokesperson shared a statement with Check Your Fact. The full statement reads:

“This is not a policy decision. The construction project you’re reading about today was appropriated during the prior administration, in 2019, and the government is legally required to utilize these funds for their appropriated purpose.

The Administration repeatedly called on Congress to cancel or reappropriate remaining border barrier funding and instead fund smarter border security measures, like border technology and modernization of land ports of entry, that are proven to be more effective at improving safety and security at the border. This is not a new barrier announcement. The specific construction in the RGV was announced in June, and as made clear then, DHS continues to prioritize deploying technology and other system elements. This construction includes the installation of detection technology, lighting, and access roads. As also announced in June, DHS worked closely throughout the summer with stakeholders, including impacted landowners, tribal, state, and local elected officials, and federal agencies.

The Biden administration’s efforts to expand access to lawful pathways and enforce tougher consequences for those who enter unlawfully has proven to create a more humane and orderly process at the southwest border. The Biden administration will continue to enforce our laws at the southwest border and those who choose to enter our country unlawfully face strict consequences. Ebbs and flows in migration will always occur and we are prepared to address them.”

U.S. Customs and Border Protection announced in June 2023 that the barriers would be “18-foot steel bollard fence panels placed in removable concrete jersey barriers,” as required by the 2019 appropriations law.

Andrew Arthur, a resident fellow in law and policy at the Center for Immigration Studies, told Check Your Fact that the administration is correct that they have used the funds as appropriated in 2019 but criticized them “as trying to have it both ways.”

“The administration is trying to have it both ways, and there is a political element to this because it allows the White House to tell northern, Democratic elected officials complaining about the migrant issues in their cities that it is ‘attempting to secure the border,'” Arthur said. He further pointed to language in the Federal Registrar note, saying that it “makes no sense if this is simply congressionally mandated funding.”

David Bier, the associate director of immigration studies at the Cato Institute, told Check Your Fact that the law “requires the money to be spent on a barrier” but that the “law doesn’t require a ‘wall’ necessarily.”

“It allows for flexibility in the barrier design to ‘mitigate community or environmental impacts.’ It doesn’t require a specific length of barrier or specific locations. It doesn’t require a specific length of barrier or specific locations,” Bier said, linking to two publications from the Government Accountability Office. “Most importantly, it doesn’t require the waiver of dozens of laws. The waivers are being done specifically to ignore community or environmental effects and expedite construction.”

Michelle Mittelstadt, the communications director for the Migration Policy Institute, gave more background for Check Your Fact. (RELATED: Did Joe Biden Eliminate $1.7 Trillion Of The Federal Debt?)

“Texas and Missouri sued after the Biden administration halted border fencing construction. That case was combined with a similar one filed by George P. Bush, the then-Texas land commissioner, in 2021. The combined case is before a federal judge in Texas and a request for an injunction that would require the government to restart construction is expected soon given briefings in the legal case ended in mid-September,” Mittelstadt said.

Mittdelstadt added:

“The administration has repeatedly called on Congress to cancel remaining wall funds and instead allow this money to be used for things it views as more effective in securing the border, including border technology and modernization of land ports of entry. In the absence of that and perhaps in light of the litigation in a federal circuit unlikely to favor the administration’s stance on this issue, the White House says it is proceeding with this new Texas barrier because it says it is legally required to utilize the funds appropriated by Congress in 2019 for the construction of border barriers.”

Mayorkas released an Oct. 5 statement, saying that the “language in the Federal Register notice is being taken out of context and it does not signify any change in policy whatsoever.”

“The construction project reported today was appropriated during the prior administration in 2019 and the law requires the government to use these funds for this purpose, which we announced earlier this year. We have repeatedly asked Congress to rescind this money but it has not done so and we are compelled to follow the law,” Mayorakas said.

Check Your Fact reached out to the White House for comment.

Elias Atienza

Senior Reporter
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