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Blog Post | November 9, 2023

Biden’s Border Wall  

ClimateDepartment of Homeland Security
Biden’s Border Wall  

The Biden Administration announced last month that it had deemed it “necessary” to waive 26 federal laws, including the Clean Air Act, the Safe Drinking Water Act, the Endangered Species Act, the Native American Graves Protection and Repatriation Act, and the American Indian Religious Freedom Act, amongst others, in order to move forward with the construction of Trump’s infamous border wall along the US-Mexico border. This decision came after Biden vowed during his 2020 campaign that there would “not be another foot of wall constructed” during his presidency.  

It’s true that the president cannot unilaterally make decisions which contradict laws passed by Congress. Also it is important to note the Biden administration cannot re-distribute the 2019 funds specifically earmarked for infrastructure on the border. However, the Biden administration was far from required to expedite its destruction, and to render null and void any law or regulation seeking to mitigate its destruction. This is particularly concerning given that the Government Accountability Office (GAO) just last month found that the environmental, ecological, and cultural costs of border wall construction are enormous, and DHS’ efforts to mitigate such costs are utterly inadequate. 

Of course, it is an outright lie to suggest that the administration was completely helpless in its wielding of the REAL ID Act waiver. 

The Biden administration spent the days hemming and hawing about how its hands were tied in issuing the waiver. Department of Homeland Security Secretary Alejandro Mayorkas, said “We have repeatedly asked Congress to rescind this money but it has not done so and we are compelled to follow the law.” Following inevitable outrage from environmentalists and advocacy groups, both Biden and Mayorkas rightfully decried border walls as stupid and ineffective. But the hollowness of these condemnations was immediately evident in Mayorkas’ own voluntary issuance of the waiver at all. In his announcement of the approval, Mayorkas said there was “an acute and immediate need to construct physical barriers and roads in the vicinity of the border of the United States in order to prevent unlawful entries into the United States in the project areas.” 

Despite Biden’s insistence that his administration is simply falling victim to the mandates of a bygone congress, he is actually engaging in an entirely voluntary use of a profoundly anti-democratic provision in order to not just build but to expedite a stupid, dangerous, harmful, cruel, ineffective, and devastating piece of infrastructure at the border. The Biden administration’s issuance of this waiver is historic as it’s the first time that the REAL ID Act has been utilized by a Democratic administration. It’s anti-democratic because it functionally allows for the flagrant flaunting of the law.

The REAL ID Act of 2005 was part of the suite of War on Terror laws put on the books under the Bush administration. It passed with little fanfare, and was a rider on a bill for tsunami disaster funding and funding for the U.S. wars in Afghanistan and Iraq. It included a novel provision (the REAL ID Act waiver) that allowed “the Secretary of Homeland Security to waive all local, state and federal laws that the Secretary deems an impediment to building walls and roads along U.S. borders.” The provision therefore vests a single unelected official with the unabridged authority to invalidate any law or regulation at any level of government at any time. The provision was wielded by the George W. Bush administration five times and the Trump administration 27 times, mostly to invalidate bedrock environmental laws and cultural (particularly Indigenous) resource protection laws. 

Biden’s waiver expedites the building of a border wall through the Lower Rio Grande Valley National Wildlife Refuge. This area is one of the most biologically diverse regions in North America and includes numerous threatened and endangered plants and animals. It has already been 95 percent devastated by development. Border walls generally disrupt animal migration patterns, cause catastrophic flooding, and kill wildlife. The construction of border walls also routinely destroys and desecrates Indigenous sacred sites and habitat that are protected under the law. Not to mention, border walls are extraordinarily lethal to migrants, cruel to migrants and border communities alike, enormously costly, and an overtly irresponsible use of taxpayer money. 

And yet, the Biden administration – via this waiver – has not just elected to build the wall, but to fasttrack its building. Even if the Biden administration had no choice but to build the wall, it was under no legal mandate to do so eagerly and expeditiously. Despite its claims, the Biden’s administration’s choice was and is a choice. So why did they do it? 

In one sense, Biden and his Administration have long lived in excessive fear of a court disagreeing with them. The Administration should comply with legal orders that have been issued–full stop. However, modern courts, handcrafted by Mitch McConnell and the Federalist Society, do not merit the traditionalist deference that would have the Administration operating out of preemptive fear of losing some hypothetical future legal challenge. The Administration can, instead, litigate aggressively to forestall outcomes they believe are unjust without concern of the possibility that some bad-faith judge, installed by the far-right dark money machine, is going to be angry with them.

In another sense, the answer is similar: Biden thought that it would win him points with Fox News and the rightwing anti-migrant media ecosystem. It won’t (and the Administration shouldn’t care about their views, anyways, just like the scorn of right wing judges shouldn’t worry them.) Such cruelties never do. Instead, such actions anger his base who see through the profound inequity. Biden, even while decrying his administration’s own action via the waiver, saw White House Press Secretary Karine Jean-Pierre advancing narratives of the Biden administration’s “hard-line” stance on border security. Unfortunately, this continues to be par for the course for this administration, as immigration has long been a fraught issue for the Biden administration, and one where he has routinely elected into cruelty

This lie, and the idiotic politicking that backed the decision in the first place, is unfortunately an all-too-familiar one from the Biden administration. 

After promising on the campaign trail that under his administration there would be “no more drilling on federal lands, period. Period, period, period,” Biden approved the Willow Project, an oil extraction project of truly devastating proportions. Biden and his Department of the Interior attempted to launder their blatant betrayal of people and planet by continuously stating that they had no other choice and no legal authority to deny the project. That was a lie, and the Biden administration’s “weak-hearted capitulation” and profound self-incapacitation, represented nothing short of a “historic abnegation of responsibility.” Instead of operating well within their legal authority (and mandate), Biden’s own handpicked Big Oil frontman at Interior ushered the project through, as if that would stop Biden’s climate critics from criticizing him. It didn’t. Instead, it enraged environmental advocates and young voters while Republicans (and Joe Manchin) continue to decry Biden for his, even now paltry, climate policy. 

Similarly, after promising on the campaign trail that he would cancel at least $10,000 in student loan debt, Biden hid behind the Supreme Court’s craven cruelty, asserted that he would follow other options for forgiveness (which, while progress has been made, still are yet to be fully realized), and argued that the restarting of payments simply was not his fault. Biden’s self-ascribed incompetency fails to take into account that he waffled on a relief plan for nearly two years, predicated his relief plan on the COVID-19 emergency which he subsequently ended prematurely, and ultimately still refuses to enact the sweeping cancellation authorities available under the Higher Education Act (HEA) of 1965. 

Clearly, one of Biden’s most fatal flaws as president is his refusal to be creative in the interpretation and enforcement of the law. Lawyers (and Republicans) are well-trained to use every creative idea they can think of to stay within the bounds of the law while achieving their goals. Biden has some of the nation’s top lawyers at his disposal, but routinely fails to even try. 

His track record shows that it’s not always the case that Joe Biden can’t advance progressive policies, but that he simply does not want to fight against vestigial norms that constrain only one side in American politics. Conversely, acquiescence rather than (even quixotic) resistance to evil is not mandated, it’s a choice. He should be held accountable for it.

ClimateDepartment of Homeland Security

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