Can an Executive Order Assure that a Mexican Border Wall is Built?

Mexican and USA flagMoving forward with a signature issue in his presidential campaign, President Trump signed an executive order directing the construction of a wall on the Mexican border. The wall is an issue that divides Americans, but apart from the policy questions posed by the president’s action, a legal issue looms. Does the president have the authority to order the construction of a boundary wall by executive order?

Executive Orders

American presidents have enormous power, but that power is not unchecked. Executive orders direct agencies of the executive branch of government to take actions that implement the president’s policies. The president has the power to manage the executive branch, but the president must exercise that power in a way that is consistent with the president’s constitutional authority or with authority that has been delegated by Congress.

Courts have the power to review executive orders and to enter injunctions that effectively nullify orders that are not authorized by the Constitution or by legislation. For example, the Supreme Court barred enforcement of President Truman’s executive order to avert a labor strike by placing all steel mills under federal control because nationalizing an industry is not a presidential power and no legislation authorized that action.

More recently, several courts set aside parts of President Trump’s executive order to prevent certain noncitizens from entering the country, particularly U.S. residents who hold green cards.

Building the Wall

The executive order concerning the border wall directs the Secretary of the Department of Homeland Security to take several actions. These are the three of greatest importance:

  • “In accordance with existing law, including the Secure Fence Act and IIRIRA, take all appropriate steps to immediately plan, design, and construct a physical wall along the southern border, using appropriate materials and technology to most effectively achieve complete operational control of the southern border.”
  • “Identify and, to the extent permitted by law, allocate all sources of Federal funds for the planning, designing, and constructing of a physical wall along the southern border.”
  • “Project and develop long-term funding requirements for the wall, including preparing Congressional budget requests for the current and upcoming fiscal years.”

The third directive is clearly within presidential authority. Presidents made budget requests and Congress enacts, rejects, or changes those requested appropriations when it enacts the budget.

The second directive recognizes that funds can be spent to build the law only to the extent that the use of those funds for that purpose is “permitted by law.” Congress is responsible for passing a budget. The president can spend money that has been budgeted for executive branch agencies and projects, but the president cannot order funds to be spent that have not been appropriated by Congress.

On the other hand, there is little doubt that the president can direct Homeland Security to “plan” and “design” the wall, which the order defines as an “impassable physical barrier.” How tall the proposed wall will be, whether it will actually be a wall rather than a fence, whether it will consist of more than one barrier, and — most importantly — how much it will cost are questions it will probably take Homeland Security some time to answer.

The first directive — to actually build the wall — is the most problematic, since the president has no authority to spend money that has not been appropriated for that purpose.

Authorizing the Wall

The executive order implies that the wall has already been authorized. The order purports to be based on authority granted by the Immigration and Nationality Act (“INA”), the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), and the Secure Fence Act of 2006. The INA generally addresses immigration but says nothing about building a border wall.

Most of the IIRIRA addressed deportation issues. However, the IIRIRA authorized a 14-mile fence to be built near San Diego. That authorization was deleted from the law when the Secure Fence Act was passed. The Secure Fence Act anticipated that the San Diego fence would merge with a longer fence. Since the deleted portions of the IIRIRA are no longer in effect, they cannot authorize the president to build a wall by executive order.

The Secure Fence Act authorized the construction of physical barriers for a distance of 700 miles across the southern border. The law was enacted in 2006. Over the next four years, Homeland Security managed to build about 600 miles of “pedestrian fencing and vehicle barriers.” Attempts to extend the project stalled in Congress and the Act was later amended to allow a “virtual wall,” consisting of cameras and other enhanced security measures, rather than a physical wall.

President Trump might rely on the Secure Fence Act to finish building a 700-mile physical wall, assuming that Congress appropriates money to do so. Appropriations authorized by an existing law would be more difficult for opponents to block than new spending legislation. But even if completion of that wall is included in the budget, the total length of the border is nearly 2,000 miles. No existing legislation authorizes a wall to extend for that entire length, and an executive order alone can’t accomplish that task.

Funding the Wall

With illegal border crossings at historic lows, whether Congress has the political will to fund a wall that might cost $25 billion to $40 billion is unclear. The lowest estimate, $15 billion, still represents a major investment of public funds.

During his campaign, President Trump promised that Mexico would pay for the wall, but President Enrique Pena Nieto has repeatedly stated that Mexico opposes the wall and won’t fund it. President Trump now says he wants Mexico to “reimburse” the United States, suggesting that American taxpayers will at least initially (and perhaps ultimately) foot the bill.

Existing funds might pay for “a small demonstration project-type wall along a short segment of the border,” but that’s all. Whether the wall will actually be built, the president’s executive order notwithstanding, will depend on the willingness of Congress to raise taxes, cut other spending, or increase the deficit in order to pay for it.

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