[House Report 116-45]
[From the U.S. Government Publishing Office]
116th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 116-45
======================================================================
RESCINDING DHS' WAIVER AUTHORITY FOR BORDER WALL ACT
_______
May 2, 2019.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Thompson of Mississippi, from the Committee on Homeland Security,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 1232]
The Committee on Homeland Security, to whom was referred
the bill (H.R. 1232) to amend the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 to repeal certain
waiver authority relating to the construction of new border
barriers, and for other purposes, having considered the same,
report favorably thereon without amendment and recommend that
the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 3
Committee Consideration.......................................... 3
Committee Votes.................................................. 4
Committee Oversight Findings..................................... 4
C.B.O. Estimate, New Budget Authority, Entitlement Authority, and
Tax Expenditures............................................... 4
Federal Mandates Statement....................................... 5
Duplicative Federal Programs..................................... 5
Performance Goals and Objectives................................. 5
Advisory on Earmarks............................................. 5
Section-by-Section Analysis of the Legislation................... 5
Changes in Existing Law Made by the Bill, as Reported............ 6
Minority Views................................................... 9
Purpose and Summary
H.R. 1232, the ``Rescinding DHS' Waiver Authority for
Border Wall Act'' repeals the overly broad authority of the
Secretary of Homeland Security (Secretary) to waive all legal
requirements that, in the Secretary's view, may delay
construction of barriers and roads at the U.S. border. Under
current law, the Secretary has sole discretion to determine
what laws and regulations need to be waived and judicial review
over these decisions is extremely limited. Rescinding this
authority would ensure that the Department of Homeland Security
adheres to the same laws any other federal department or agency
would have to follow.
Background and Need for Legislation
In 2005, the Secretary of Homeland Security was granted
unilateral authority to waive all local, State and Federal laws
to expedite the construction of fences, concrete slabs, or
other infrastructure at the border pursuant to a section
enacted in an emergency supplemental appropriations funding
package enacted for the Global War on Terror and disaster
relief.\1\ This authority allows the Department of Homeland
Security to bypass any law, regulation, treaty, and ordinance
that it deems to be an impediment to constructing the border
wall and other infrastructure between ports of entry. Laws that
have been subject to the waiver include bedrock Federal
environmental laws such as the National Environmental Policy
Act [NEPA], the Endangered Species Act, the Clean Water Act,
the National Historic Preservation Act, the Migratory Bird
Treaty Act, the Clean Air Act, the Archeological Resources
Protection Act, the Safe Drinking Water Act, the Noise Control
Act, the Solid Waste Disposal Act, the Comprehensive
Environmental Response, Compensation, and Liability Act, the
Archaeological and Historic Preservation Act, the Antiquities
Act, the Historic Sites, Buildings, and Antiquities Act, the
Wild and Scenic Rivers Act, the Farmland Protection Policy Act,
the Coastal Zone Management Act, the Wilderness Act, the
Federal Land Policy and Management Act, the National Wildlife
Refuge System Administration Act, the Fish and Wildlife Act of
1956, the Fish and Wildlife Coordination Act, the
Administrative Procedure Act, the Otay Mountain Wilderness Act
of 1999, the California Desert Protection Act [Sections 102(29)
and 103 of Title I], the National Park Service Organic Act, the
National Park Service General Authorities Act, the National
Parks and Recreation Act of 1978 [Sections 401(7), 403, and
404], the Arizona Desert Wilderness Act [Sections 301(A)-(F)],
the Rivers and Harbors Act of 1899, the Eagle Protection Act,
the Native American Graves Protection and Repatriation Act, the
American Indian Religious Freedom Act, the Religious Freedom
Restoration Act, the National Forest Management Act of 1976,
the Multiple Use and Sustained Yield Act of 1960, the Military
Lands Withdrawal Act of 1999, the Sikes Act, the Arizona-Idaho
Conservation Act of 1988, the Federal Grant and Cooperative
Agreement Act of 1977, the Migratory Bird Conservation Act, the
Paleontological Resources Preservation Act, the Federal Cave
Resources Protection Act of 1988, the National Trails System
Act, the National Wildlife Refuge System Improvement Act of
1997, the Reclamation Project Act of 1939 [Section 10], the
Wild Horse and Burro Act.
---------------------------------------------------------------------------
\1\Emergency Supplemental Appropriations Act for Defense, the
Global War on Terror, and Tsunami Relief, 2005, P.L. 109-13, 2005.
---------------------------------------------------------------------------
At least one waiver issued under this authority resulted in
catastrophic damage in a border community. In 2008, during a
rain storm in the city of Nogales, Arizona, a storm run-off
channel was blocked by a five-foot-tall concrete barrier that
the Department of Homeland Security built pursuant to this
waiver authority. The border barrier prevented storm water from
reaching a water treatment center and placed such pressure on
underground pipes that it resulted in a ten-foot-sinkhole that
caused upwards of $8 million in damage to downtown Nogales.\2\
---------------------------------------------------------------------------
\2\Melissa Del Bosque, Trump's Border Wall Could Cause Deadly
Flooding in Texas. Federal Officials Are Planning to Build It Anyway,
Texas Monthly, December 2018.
---------------------------------------------------------------------------
There is no requirement that the Secretary consult anyone,
even on issues or laws that are not under the Department of
Homeland Security's purview or on which the Secretary has no
expertise, before the Secretary exercises this discretion.
Moreover, if the waiver of laws and the ensuing construction of
this border infrastructure results in damage to property or
injury to individuals, there is no requirement that the
Department mitigate or respond to the resulting harm.
In addition to this unilateral waiver ability, the law also
largely insulates the Secretary's decision from judicial
review. Exclusive jurisdiction is granted to the district
courts of the United States and appellate review can only occur
upon petition for a writ of certiorari to the Supreme Court of
the United States. Moreover, the courts can only hear claims
that allege a violation of the Constitution of the United
States. To further limit any possibility of judicial review, a
complaint must be brought within 60 days of the waiver decision
by the Secretary.
This authority has been exercised five times in the twelve
years prior to the Trump Administration. In contrast, the Trump
Administration has exercised this waiver authority nine times
in a little over two years. As waivers become more frequent,
the potential for unintended consequences and resulting harm
increases.
Given the vastness of this waiver authority, the impacts of
the exercise of this authority on landowners and border
communities, the limitations on judicial remedies for impacted
landowners in border communities, and the increasing frequency
of these waivers by the Trump Administration, it is more
important than ever that this authority be rescinded.
Hearings
This legislation was informed by a Homeland Security
Committee hearing on March 6, 2019 entitled, ``The Way Forward
on Border Security.'' The Committee received testimony from the
Honorable Kirstjen Nielsen, Secretary of the Department of
Homeland Security.
Committee Consideration
The Committee met on March 13, 2019, to consider H.R. 1232
and ordered the measure to be reported to the House with a
favorable recommendation, without amendment, by a recorded vote
of 17 yeas and 12 nays.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the recorded
votes on the motion to report legislation and amendments
thereto.
The Committee on Homeland Security considered H.R. 1232 on
March 13, 2019, and took the following vote:
On Ordering to be reported was Agreed to: 17 yeas and 12
nays (Roll Call Vote No. 1). The vote was as follows:
ROLL CALL NO. 1
H.R. 1232
On ordering to be reported was AGREED TO, by a recorded
vote of 17 yeas and 12 nays (Roll Call Vote No. 1). The vote
was as follows:
----------------------------------------------------------------------------------------------------------------
Representative Yea Nay Representative Yea Nay
----------------------------------------------------------------------------------------------------------------
Mr. Thompson, Mississippi, Chair......... X ............ Mr. Rogers, Alabama, Ranking ....... X
Member.
Ms. Jackson Lee, Texas................... ....... ............ Mr. King, New York.......... ....... X
Mr. Langevin, Rhode Island............... X ............ Mr. McCaul, Texas........... ....... X
Mr. Richmond, Louisiana.................. X ............ Mr. Katko, New York......... ....... X
Mr. Payne, New Jersey.................... X ............ Mr. Ratcliffe, Texas........ ....... .......
Miss Rice, New York..................... X ............ Mr. Walker, North Carolina . ....... X
Mr. Correa, California................... X ............ Mr. Higgins, Louisiana ..... ....... X
Ms. Torres Small, New Mexico............. X ............ Mrs. Lesko, Arizona......... ....... X
Mr. Rose, New York....................... X ............ Mr. Green, Tennessee........ ....... X
Ms. Underwood, Illinois.................. X ............ Mr. Taylor, Texas........... ....... X
Ms. Slotkin, Michigan.................... X ............ Mr. Joyce, Pennsylvania..... ....... X
Mr. Cleaver, Missouri.................... X ............ Mr. Crenshaw, Texas ........ ....... X
Mr. Green, Texas......................... X ............ Mr. Guest, Mississippi...... ....... X
Ms. Clarke, New York..................... X ............
Ms. Titus, Nevada........................ X ............
Mrs. Watson Coleman, New Jersey.......... X ............
Ms. Barragan, California................. X ............
Mrs. Demings, Florida.................... X ............
-----------------
Vote Total 17 12
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Congressional Budget Office Estimate New Budget Authority, Entitlement
Authority, and Tax Expenditures
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but not received a cost estimate for this bill from the
Director of Congressional Budget Office.
The Committee has requested but not received from the
Director of the Congressional Budget Office a statement as to
whether this bill contains any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
Federal Mandates Statement
An estimate of Federal mandates prepared by the Director of
the Congressional Budget Office pursuant to section 423 of the
Unfunded Mandates Reform Act was not made available to the
Committee in time for the filing of this report. The Chairman
of the Committee shall cause such estimate to be printed in the
Congressional Record upon its receipt by the Committee.
Duplicative Federal Programs
Pursuant to clause 3(c) of rule XIII, the Committee finds
that H.R. 1232 does not contain any provision that establishes
or reauthorizes a program known to be duplicative of another
Federal program.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
1232 would rescind the Secretary's ability to unilaterally
waive any local, State, or Federal law to expedite the building
of a border wall or other infrastructure between ports of
entry.
Advisory on Earmarks
In compliance with rule XXI of the Rules of the House of
Representatives, this bill, as reported, contains no
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of the rule
XXI.
Section-by-Section Analysis of the Legislation
Section 1. Short title
This section provides that this bill may be cited as the
``Rescinding DHS' Waiver Authority for Border Wall Act''.
Sec. 2. Repeal of waiver authority for the construction of new border
barriers
This section repeals the waiver authority related to the
construction of new border barriers by striking subsection (c)
of Section 102 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (division C of P.L. 104-208, 8
U.S.C. 1103 note), as amended by the Emergency Supplemental
Appropriations Act for Defense, the Global War on Terror, and
Tsunami Relief, 2005, (P.L. 109-13).
This section will take away the Secretary's ability to
waive, without prior consultation or notice to border
landowners, border communities, border state Governors, or
other interested parties, that a law or regulation must be
waived to expedite the building of infrastructure along the
border. By rescinding this extraordinary waiver authority--that
prioritizes the building of a border wall and border
infrastructure between ports of entry above all other Federal
infrastructure and at the expense of the environment, economy,
and culture of border communities--the legislation would
require the Department of Homeland Security to follow all the
laws and regulations that every other federal entity must
ordinarily follow for a construction project.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets and
existing law in which no change is proposed is shown in roman):
ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996
DIVISION C--ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT
OF 1996
* * * * * * *
TITLE I--IMPROVEMENTS TO BORDER CONTROL, FACILITATION OF LEGAL ENTRY,
AND INTERIOR ENFORCEMENT
Subtitle A--Improved Enforcement at the Border
* * * * * * *
SEC. 102. IMPROVEMENT OF BARRIERS AT
BORDER.
(a) In General.--The Secretary of Homeland Security shall
take such actions as may be necessary to install additional
physical barriers and roads (including the removal of obstacles
to detection of illegal entrants) in the vicinity of the United
States border to deter illegal crossings in areas of high
illegal entry into the United States.
(b) Construction of Fencing and Road Improvements Along the
Border.--
(1) Additional fencing along southwest border.--
(A) Reinforced fencing.--In carrying out
subsection (a), the Secretary of Homeland
Security shall construct reinforced fencing
along not less than 700 miles of the southwest
border where fencing would be most practical
and effective and provide for the installation
of additional physical barriers, roads,
lighting, cameras, and sensors to gain
operational control of the southwest border.
(B) Priority areas.--In carrying out this
section, the Secretary of Homeland Security
shall--
(i) identify the 370 miles, or other
mileage determined by the Secretary,
whose authority to determine other
mileage shall expire on December 31,
2008, along the southwest border where
fencing would be most practical and
effective in deterring smugglers and
aliens attempting to gain illegal entry
into the United States; and
(ii) not later than December 31,
2008, complete construction of
reinforced fencing along the miles
identified under clause (i).
(C) Consultation.--
(i) In general.--In carrying out this
section, the Secretary of Homeland
Security shall consult with the
Secretary of the Interior, the
Secretary of Agriculture, States, local
governments, Indian tribes, and
property owners in the United States to
minimize the impact on the environment,
culture, commerce, and quality of life
for the communities and residents
located near the sites at which such
fencing is to be constructed.
(ii) Savings provision.--Nothing in
this subparagraph may be construed to--
(I) create or negate any
right of action for a State,
local government, or other
person or entity affected by
this subsection; or
(II) affect the eminent
domain laws of the United
States or of any State.
(D) Limitation on requirements.--
Notwithstanding subparagraph (A), nothing in
this paragraph shall require the Secretary of
Homeland Security to install fencing, physical
barriers, roads, lighting, cameras, and sensors
in a particular location along an international
border of the United States, if the Secretary
determines that the use or placement of such
resources is not the most appropriate means to
achieve and maintain operational control over
the international border at such location.
(2) Prompt acquisition of necessary easements.--The
Attorney General, acting under the authority conferred
in section 103(b) of the Immigration and Nationality
Act (as inserted by subsection (d)), shall promptly
acquire such easements as may be necessary to carry out
this subsection and shall commence construction of
fences immediately following such acquisition (or
conclusion of portions thereof).
(3) Safety features.--The Attorney General, while
constructing the additional fencing under this
subsection, shall incorporate such safety features into
the design of the fence system as are necessary to
ensure the well-being of border patrol agents deployed
within or in near proximity to the system.
(4) Authorization of appropriations.--There are
authorized to be appropriated such sums as may be
necessary to carry out this subsection. Amounts
appropriated under this paragraph are authorized to
remain available until expended.
[(c) Waiver.--
[(1) In general.--Notwithstanding any other provision
of law, the Secretary of Homeland Security shall have
the authority to waive all legal requirements such
Secretary, in such Secretary's sole discretion,
determines necessary to ensure expeditious construction
of the barriers and roads under this section. Any such
decision by the Secretary shall be effective upon being
published in the Federal Register.
[(2) Federal court review.--
[(A) In general.--The district courts of the
United States shall have exclusive jurisdiction
to hear all causes or claims arising from any
action undertaken, or any decision made, by the
Secretary of Homeland Security pursuant to
paragraph (1). A cause of action or claim may
only be brought alleging a violation of the
Constitution of the United States. The court
shall not have jurisdiction to hear any claim
not specified in this subparagraph.
[(B) Time for filing of complaint.--Any cause
or claim brought pursuant to subparagraph (A)
shall be filed not later than 60 days after the
date of the action or decision made by the
Secretary of Homeland Security. A claim shall
be barred unless it is filed within the time
specified.
[(C) Ability to seek appellate review.--An
interlocutory or final judgment, decree, or
order of the district court may be reviewed
only upon petition for a writ of certiorari to
the Supreme Court of the United States.]
(d) [Omitted--Amends another Act.]
* * * * * * *
MINORITY VIEWS
In 2006, the House passed the Secure Fence Act (H.R. 6061).
This landmark effort led by former Homeland Security Committee
Chairman Peter King directed the construction of hundreds of
miles of border barriers and passed the House with substantial
bipartisan support.
The Secure Fence Act's effectiveness and the effectiveness
of nearly all border barrier construction hinges on the exact
provision of law that H.R. 1232 would repeal.
The waiver authority H.R. 1232 would repeal has been upheld
in the courts, and as former Secretary Nielsen explained before
the committee earlier this year, has only been used in cases
where it was absolutely necessary.
It is unfortunate that the majority has now rejected the
long-standing bipartisan consensus in this committee that
border barriers are a key part of border security.
Instead, the majority has spent time building up strawman
arguments about massive land grabs, trampled wildlife, and
environmental catastrophes allegedly caused by construction of
border barriers. There is no such crisis at the southwest
border. There is, however, a humanitarian, national security,
and illegal immigration crisis.
Illegal border crossings are on track to reach 12-year
highs and our broken immigration system is being exploited by
smugglers and cartels who make billions of dollars off
desperate migrants and lethal drugs.
In Fiscal Year 2018, CBP seized 895,011 pounds of drugs at
the border. That includes approximately 2,135 pounds of
fentanyl. To put that in perspective, just two milligrams of
fentanyl is a fatal dose to most people according to the DEA
and 2,135 pounds of fentanyl represents a lethal dose for about
484 million people.
CBP seizes more pounds of drugs between ports of entry than
at ports of entry. Since FY2012, CBP has seized more than 11
million pounds of drugs between ports of entry, compared with
about 4 million pounds at ports of entry.
Border Patrol regularly conducts capability gap analyses of
known and anticipated threats. In doing so, Border Patrol has
determined the need for a functioning wall system to gain
situational awareness and operational control along the
southwest border.
A wall system is a combination of various types of physical
border barriers and infrastructure that includes wall or fence,
all-weather patrol and access roads, lighting, enforcement
cameras, sensors that incorporate anti-tunnel detection, and
other 21st century technology.
CBP data clearly shows that in areas where we have built a
wall system, illegal traffic has plummeted. In San Diego,
illegal traffic has dropped 92 percent. In El Paso, illegal
traffic has dropped 95 percent. And in Tucson, illegal traffic
has dropped 90 percent.
It's unfortunate that the Majority refuses to listen to the
agents and operators in the field about what it takes to secure
the southwest border, and refuses to consider the national
security impact of this legislation. H.R. 1232 would make our
country less safe and less secure.
Mike Rogers.
[all]