Changes to Border Fence Language Debated As Property Owners Oppose Intrusion

by Daniela Martinez Moreno
AFSC Special Projects Policy Fellow

Senator Kay Bailey Hutchison's (R-TX) amendment to the Fiscal Year 2008 Omnibus Appropriations bill (H.R. 2764) signed into law last month caused a flurry of action in the House of Representatives. Provisions in Hutchison's amendment:

- Require the Department of Homeland Security (DHS) to "consult with the Secretary of the Interior, the Secretary of Agriculture, States, local government, 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" of fence construction;

- Mandate the construction of 700 miles of fence along the U.S.-Mexico border, out of which 370 miles must be completed by the end of 2008; and,

- Provide the Secretary of Homeland Security discretion to determine whether or not the placement of fencing along an international border of the United States is "the most appropriate means to achieve and maintain operational control over the international border at such location".

According to the Senator, her amendment takes a positive step towards construction of the border fence by requiring consultation with landowners and local elected officials, many of whom feel ignored by the federal government as it continues to plan the building of 130 miles of fencing in Texas (Houston Chronicle).

In addition, the Senator claims that all eight Senators representing the four border states - Senators John Cornyn (R-TX), Jon Kyl (R-AZ), John McCain (R-AZ), Pete Domenici (R-NM), Jeff Bingaman (D-NM), Dianne Feinstein (D-CA) and Barbara Boxer (D-CA) - are co-sponsors of the amendment's border-fence language.

A number of border fence proponents in Congress criticized Hutchison's amendment for changing the Secure Fence Act of 2006, which mandates the construction of 700 miles of double-layered, reinforced border fencing. However, Senator Hutchison asserts that her amendment is not about whether or not the fence will be constructed, but when and how it will be constructed.

House Members Target Hutchison Amendment

In response to Senator Hutchison's amendment, three members of the House of Representatives introduced border-enforcement bills that modify or repeal certain sections of the amendment.

On January 15, Representative Jim Marshall (D-GA) introduced the Immigration Law Corrections Act of 2008 (H.R. 4960). This bill strikes a paragraph in the Hutchison amendment, which gives the Secretary of Homeland Security discretion regarding border fence placement.

The following day, Representatives Walter Jones (R-NC) and Peter King (R-NY), the original sponsor of the Secure Fence Act of 2006, introduced the "Fence by Date Certain Act" (H.R. 4987). Representative Jones argued that Hutchison's amendment weakens the Secure Fence Act of 2006 (H.R. 6061) by stripping its requirement that the fencing be double-layered at specific areas of the border, and completed by certain dates. His bill requires 700 miles of double-layered fencing to be constructed by June 30, 2009.

On January 23, Representative Duncan Hunter (R-CA), author of the Secure Fence Act of 2006 fencing provisions, introduced the "Reinstatement of the Secure Fence Act of 2008" (H.R. 5124). Representative Hunter's bill strips the provision in Senator Hutchison's amendment that requires the Department of Homeland Security to consult with the local government, Indian tribes, and U.S. property owners. In addition, the proposed legislation mandates the construction of at least 700 miles of double-layered border fencing in locations determined by the Secretary of DHS within 6 months of the bill's enactment.

Representative Hunter inaccurately claims that "consultation" language could open fence construction to many challenges. The language in the Hutchison amendment does not require that DHS abide by decisions of the consultation.

Hutchison Amendment Does Little for Locals Protesting Border Fence

Regardless of Hutchison's amendment, the failure of a recent lawsuit involving DHS fence construction indicates that local community efforts to stop construction of the fence face an uphill struggle. On January 30, the Justice Department sued six Texas property owners in Cameron County who refused to grant DHS access to their land for border fence surveying (Houston Chronicle). Their collective action came in defiance of Brownsville Federal District Court Judge Andrew Hanen's rule on January 29 requiring that the property owners allow DHS officials access to their land.

Border town community members and local officials alike continue to be frustrated by DHS attempts to disrupt their way of life by imposing the construction of a fence. Whether double-layered or not, building a fence at the border has never proven to be a long-term, practical solution to the immigration dilemma. Once again, local property owners and border communities are receiving the brunt end of the deal as their quality of life is disturbed and altered.