Trump gets more funding for border wall, but construction in Texas limited
In the waning days of the Trump administration, Congress approved another $1.375 billion to construct barriers along the U.S.-Mexico border Tuesday, adding to the nearly $15 billion that has been either been spent, or allocated, largely without congressional approval.
However, while the bill adds new border wall funding, it restricts where U.S. Customs and Border Protection can build a barrier, and requires the agency to provide Congress with an "expenditure plan" before it uses funds for border security construction and acquisition.
The spending bill also hits U.S. Immigration and Customs Enforcement and CBP with new requirements and restrictions following scandals and outrage formed during Trump's tenure — requiring CBP to have medical equipment at Border Patrol stations, creating a new watchdog at ICE for detention facilities, and allowing Congress members to conduct their own unannounced inspections. The bill also creates new reporting requirements for both agencies, and requires ICE to release immigrants when possible.
The funding for the border wall was part of a sweeping year-end bill that included $1.4 trillion to fund the federal government, and another $900 billion for COVID-19 relief. Congress submitted the bill to Trump, and on Wednesday, he said he objected both parts of the combined measure. In a video posted to social media, the president conflated the two spending plans together, attacking the spending bill because it included "wasteful and unnecessary items," and the measure for COVID-19 relief because a round of $600 stimulus checks was "ridiculously low."
Instead, the president demanded the checks be increased to $2,000 per person, or $4,000 for a couple, upending months of work between the House of Representatives and the Senate.
Even so, Trump ultimately signed the appropriation plan days later.
Since January 2017, CBP and the U.S. Army Corps of Engineers have constructed, or planned to construct around 738 miles of primary and secondary fencing across the U.S.-Mexico border at a cost of $14.97 billion. This includes new walls, as well as barriers that replaced what the agency called "dilapidated and/or outdated designs."
This includes $6.3 billion from money from funding earmarked for counter-narcotics operations, and another $3.6 billion in military construction funding that was shifted under Section 2808 of federal law, which allows the president to use the National Emergency Act to authorize military construction projects that aid the U.S. military.
Much of it completed along federally-protected lands in the agency's Tucson Sector, ranging across Pima, Santa Cruz and Cochise Counties, affecting the Cabeza Prieta National Wildlife Refuge, Organ Pipe Cactus National Monument, the San Bernardino National Wildlife Refuge, and the San Pedro Riparian National Conservation Area—the site of one of the nation's last "free-flowing" rivers. The agency has also torn across the landscape of the Peloncillo Mountains and Guadalupe Canyon in Cochise County, dynamiting a sharp scar across Shadow Mountain, prompting a ranch in Cochise County to file suit in mid-November.
And, this effort has come despite multiple lawsuits, launched by Congress, environmental and human rights groups, and protests by members of the Tohono O'odham Nation and other advocates at a half-dozen sites.
Environmental groups have sharply criticized the construction, blasting CBP, USACE and its contractors, for intentionally destroying saguaro cacti, tearing through watersheds, using wells to draw water from the historic and sacred Quitobaquito Spring, and severing the migration pathways for endangered species.
"As of the second week of December 2020, all connectivity and movement between the United States and Mexico in southeastern Arizona has been stopped dead in its tracks," wrote Myles Traphagen, who coordinates Wildlands Network's borderlands program.
During his visit to Tucson near the end of his failed run for a second term, Trump claimed that under his leadership, "we achieved the most secure border in U.S. history, and our southern border."
"And, we built almost 400 miles of the wall, we're averaging about 10 miles a day," the president claimed. He boasted that his administration gave CBP "the ultimate, we gave them everything they wanted, they're really happy, and it's had a huge impact."
"We got the best border we've ever had and you know what? You have a big chunk of it right here," Trump said.
Federal courts have rejected these financial maneuvers, and before Trump spoke in Tucson, the Supreme Court agreed had agreed to hear arguments about a case launched by the American Civil Liberties Union and the Sierra Club, and the Southern Borders Communities Coalition.
"You have 200 miles, they tell me, 200 miles. 200 miles I didn't even know you had. That's a lot of mileage, you're not paying a damn cent for it," Trump said, forgetting an earlier line about how federal taxes soaked Arizona taxpayers. "All compliments of..." Trump paused and threw out his arms for dramatic effect. "....the federal government."
Overall, the bill sends about $69 billion to Homeland Security, including about $15.28 billion for CBP. This is about $370 million above last year's budget, but $520 million below the White House's request.
While CBP has a larger budget, the bill did not provide funding for more agents, but it allocated nearly $34 million for body-worn cameras for Border Patrol stations, $10 million for port of entry technologies, $119 million for new aircraft and sensors, including a program for small drones, and a program to counter drones from drug smugglers and others, and $142 million for CBP facilities.
Around $36 million is earmarked for a "counter-unmanned aerial systems" under the bill, which directs Homeland Security's Science and Technology Directorate to work with other agencies and universities to research, develop and test ways to counter drones, and "ensure a consistent and efficient federal approach to countering the misuse of UAS in the national airspace."
For years, Border Patrol agents near Yuma, Ariz., have reported smugglers using small drones to deliver narcotics over the U.S.-Mexico border. However, two weeks ago, Yuma Sector agents asked the public to help spot and report drones that could be involved in smuggling.
This program is matched by a requirement to brief Congress on a pilot program that has CBP using its own small drones—or in DHS parlance, Small Unmanned Aerial Systems. CBP operates a small fleet of unmanned "Predator" and "Reaper" drones, but since 2017 the agency has been testing out smaller drones that can be easily flown by a few agents.
The bill also provided about $840 million in "emergency appropriations" for U.S. ports to "offset the loss of customs and immigration fee revenue" that has been lost because of the coronavirus pandemic.
CBP was also instructed to ensure that a plan to repair the International Outfall Interceptor, a large-scale sewer pipe system in Nogales, does not affect the Dennis DeConcini Port of Entry.
The bill blocks CBP from constructing fencing in several locations in Texas, including Bentsen-Rio State Park near Mission, the National Butterfly Center, the Santa Ana Wildlife Refuge, and Lower Rio Grande Wildlife Refuge near the Gulf of Mexico. The bill also blocks CBP from building in historic cemeteries.
Additionally, the bill requires CBP to give Congress an "expenditure plan prior to the use of funds for border security construction and acquisition." This follows a July 14 analysis by Homeland Security's Inspector General, which found that CBP failed to "assess and select" the best ways to gain "operational control" of the southern border. CBP "did not use a sound, well-documented methodology to identify and prioritize investments in areas along the border that would best benefit from physical barriers," the OIG wrote.
A review of federal contracts by ProPublica/Texas Tribune found that contracts made with the U.S. Army Corps of Engineers—which leads the construction of the border wall—and CBP showed that costs of the contracts rapidly spiked after their initial awards. Within a year, the value of two contracts tripled from $788 million for 83 miles of fencing to over $3 billion, even as the project's line of fencing grew just 62 percent to 135 miles.
"The cost of supplemental agreements and change orders alone — at least $2.9 billion — represents about a quarter of all the money awarded and more than what Congress originally appropriated for wall construction in each of the last three years," they said.
Environmental groups criticized the bill's funding for the border wall.
"Congress should not allocate a single dollar more for border wall construction that is currently decimating public lands, seizing private property and irreversibly damaging this region," said Dan Millis, a spokesman for the Sierra Club. "The incoming Biden administration already said they will halt wall construction completely, so this allocation is useless. We should use this money to invest in relief for Americans and public health measures to fight the coronavirus."
"The President-Elect has already gone on record saying he will not build 'another foot of wall,'" said Adam Isacson, director for defense oversight at the Washington Office on Latin America. "Appropriating wall construction funds for 2021, then, is an empty exercise in political theater. This money must not hamstring Joe Biden into building Donald Trump’s wall. The incoming President should use all available authorities to transfer this $1.3 billion to other DHS activities, like dismantling harmful wall segments, or humane processing and alternatives to detention for asylum seekers."
"It’s hard to believe that Congress has chosen to prioritize giving $1.375 billion in new funding for the deadly border wall," said Vicki B. Gaubeca, director of the Southern Border Communities Coalition. "It’s especially difficult to fathom at a time where there is so much suffering caused by the COVID-19 pandemic. Those funds would be better spent on essential healthcare, safety net infrastructure to help those who are unable to work and other services that enable our communities to thrive, not walls that kill, destroy wildlife and infringe upon indigenous sovereignty."
ICE received $7.97 billion, about $1.95 billion below the White House's request. This includes $2.14 billion for "investigations with a cross-border nexus," which includes human trafficking, financial crimes, and "cyber investigations" managed by Homeland Security Investigations.
Another $4.12 billion was given to ICE's Enforcement and Removal Operations, the part of the agency responsible for deportations and detentions. This includes $440 million for Alternatives to Detention—a program that includes supervised release for people who might be subject for deportation, but are awaiting their cases. This includes families, who can be released on bond, their own recognizance, or parole pending a decision on whether they should be removed from the United States, ICE said.
The bill requires ICE to work to use ATD and prioritize its use for immigrant children and their families, "when appropriate" and requires ICE work release people and their family members who "pass credible fear screening and do not present a public safety or flight risk."
The bill rejected a proposal to use an Immigration Examination Fee from U.S. Citizenship and Immigration Services to support ICE investigations, and it provided zero funding for additional immigration enforcement personnel.
The bill does include $3 million to address the agency's Freedom of Information Act backlog, and ICE has been directed to quickly publish applications for its 287g program—a program that allows local law enforcement to collaborate with ICE and hold immigrants in city and county jails. The bill also requires ICE to "ensure thorough vetting" that the agencies which apply can meet the minimum conditions for detention.
The bill also provided a swat at ICE and CBP over several scandals during the Trump administration.
This including the policy to expel people under Title 42, a CDC public health order that has been used by CBP to immediately expel people back across the border without hearings. Similarly, Congress required CBP "ensure that appropriate medical supplies are made available" to Border Patrol agents with an Emergency Medical Technician or paramedic certification, and to each Border Patrol sector, including all remote stations and forward operating bases. The requirement came after six children died in CBP custody from September 2018 to May 2019, including two Guatemalan children died within weeks of each other during December 2018.
Jakelin Caal Maquin, 7, and Felipe Gómez Alonzo, 8, died in Border Patrol custody in a remote part of New Mexico. The boy died from flu and sepsis, and the girl from streptococcal sepsis.
CBP was told to "consult" with, and consider recommendations from national organizations with expertise in emergency medical care, including emergency medical care of children, and the DHS Chief Medical Officer.
ICE must also sever contracts with detention facilities that fail two consecutive inspections, and require more frequent inspections by ICE’s Office of Professional Responsibility. And, ICE must publicly post inspection results and plans to address deficiencies. This will be validated by a new Office of Immigration Detention Ombudsman.
The bill will also authorize members of Congress to conduct unannounced inspections of detention facilities, as well as designated congressional staff who provide a 24-hour notice, and prohibit DHS from destroying records related to the "death of, potential sexual assault against, or abuse of individuals in its custody."
ICE was also reminded to follow the Morton Memo, an Obama-era guidance telling ICE not to engage in enforcement actions at or near "sensitive locations," including courthouses, schools, churches, USCIS offices, mental health, emergency, and social services centers; and other locations where community impacts should be balanced against ICE law enforcement interests.
ICE is also required to publish information on those who are in the agency's custody, including families and transgender detainees, border apprehension detainees, those picked up in the interior enforcement detainees, and those who are in custody who have a positive credible fear claim.
FEMA was given $21.67 billion, including $17.14 billion for disaster response, and recovery. This includes $610 million for the State Homeland Security Grant Program, including $90 million for the SHSGP Nonprofit Security Grants Program, which includes the controversial Operation Stonegarden, and another $705 million for the Urban Areas Security Initiative, including $90 million for the UASI Nonprofit Security Grant Program.
The Coast Guard was given $12.84 billion, and Transportation Security Administration received $7.96 billion. Both agencies were funded above the White House's original request.