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Biden Sued Over Border Wall Construction Halt

Tuesday, November 9, 2021

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Texas Attorney General Ken Paxton, co-lead with Missouri Attorney General Eric Schmitt, has filed a lawsuit against the Biden Administration for halting construction of the U.S.-Mexico border wall. According to the lawsuit, Congress has refused to spend funding appropriated in the 2020 Consolidated Appropriations Act for construction of the wall.

President Joe Biden issued a proclamation shortly after taking office in January 2021 to pause the construction of the U.S.-Mexico border wall and rescinded the national emergency declaration former President Donald Trump had put in place.

“The Biden Administration’s flat refusal to use funds that have already been set aside by Congress to build the border wall is not only illegal and unconstitutional. It’s also wrong, and it leaves states like Texas and Missouri footing the bill,” Paxton said in his statement.

“I will not sit idly by while this Administration wreaks more havoc on our state. This is my seventh border security and immigration related lawsuit against President Biden and his lawless executive agencies. I won’t rest until Texas is safe from the disaster he created and the disaster he continues to investigate.”   

The lawsuit also states that the Department of Homeland Security’s announcement in October to “terminate the remaining border barrier contracts” is unconstitutional.

Micha Garren / Getty Images

Texas Attorney General Ken Paxton, co-lead with Missouri Attorney General Eric Schmitt, has filed a lawsuit against the Biden Administration for halting construction of the U.S.-Mexico border wall.

“Time and again, the Biden Administration has refused to take concrete action to quell the worsening border crisis, inviting the cartels and human and drug smugglers to take advantage of our porous border,” Schmitt said in his statement. “Without a border wall, illegal immigrants, coyotes and bad actors can simply march across our southwest border and into the interior. The border wall needs to be built, the funds have been appropriated to continue to build the wall, and yet the Biden Administration outright refuses to do so.

“As Missouri continues to fight human trafficking, an unsecured border only worsens that scourge of human trafficking across the country and within Missouri’s borders. Earlier this year, I sued the Biden Administration for their cancellation of the ‘Remain in Mexico’ policy and won at the district court, 5th Circuit Court of Appeals and the United States Supreme Court. Missouri stands ready to hand the Biden Administration another loss. If Joe Biden continues to refuse to take the necessary steps to secure the border, Missouri will.”

The full lawsuit can be read here.

Project Saga Background

In September 2017, the first border wall contracts were awarded to four different companies to develop prototypes that would work in conjunction with the border in the San Diego area. At the time, U.S. special forces spent weeks attempting to breach the eight prototype models of the proposed U.S.-Mexico border wall, which proved to withstand jackhammers, torches and climbing tools.

In October 2018, the U.S. Department of Homeland Security announced that any environmental regulations regarding the construction or repair of a section of the border wall for certain areas in Texas would be waived, drawing ire from environmentalists and private property owners alike. The announcement detailed exemptions in Cameron County; another announcement made the following day detailed similar measures for Hidalgo County.

Through the course of late 2018 and into 2019, construction began on section of border wall gates in the Rio Grande Valley sector, with several million in border wall contracts being awarded for work elsewhere.

However, at the beginning of 2019, reports revealed that all eight border wall prototypes were susceptible to breaching. According to NBC News, testing conducted by the Department of Homeland Security showed that all prototypes, including the steel slat design, were vulnerable to damage from easily accessible tools. For example, the steel slat prototype could be cut through with a saw.

In mid-2019, a judge blocked the president’s use of money originally intended for military funding, for work on the border wall. The injunction only accounted for roughly $1 billion in funding for the border wall, money that the Department of Defense had funneled away from Army personnel to the Department of Homeland Security.

In July, over a week after a federal judge blocked the Trump Administration from using $2.5 billion in funding for the border wall, the CBP and the U.S. Army Corps of Engineers awarded a $33 million contract for four miles of border wall work in Texas. Environmental regulations for that section of structure were also waived. August also saw the award of another $305 million in contracts.

In September, Secretary of Defense Mark Esper approved $3.6 billion in funding—largely pulled from military construction projects, including housing—to go toward building 175 miles of the border wall. At the end of that same month, Jonathan Hoffman, assistant to the secretary of defense for public affairs, reported that roughly a mile of border wall is being built every day.

By December 2019, the project saw additional funding stemming from canceled military projects being assigned to three new contracts for the construction of over 30 miles of replacement fencing along the U.S.-Mexico border, totaling $316 million in work.

That same month, a federal judge blocked the Trump Administration from transferring $3.6 billion in Pentagon funds for new border wall barriers when it attempted to commander funds for the border wall that had already been authorized by Congress for other purposes.

The following month, the 5th Circuit Court of Appeals, based out of New Orleans, ruled 2-1 that a certain set of Department of Defense funding could be used for border wall construction and lifted the injunction. The Washington Post reported that due to this ruling, the President and his administration viewed the matter as an invitation to take money again in 2020.

However, it was announced later in January 2021 that Trump was gearing up to divert $7.2 billion of military funds to use for barrier construction in the U.S.-Mexico border wall project. To break down where the funds will come from, the President intended to use $3.5 billion from counternarcotic programs and $3.7 billion intended for construction projects.

In June 2020, the Ninth Circuit Court of Appeals ruled that Trump wouldn’t be permitted to divert $2.5 billion of military funds to the construction of the wall, as the action was considered an attempt by the president to skirt Congress. Even though the funds were transferred under a declaration of national emergency, Chief Judge Sidney R. Thomas penned the ruling, proclaiming that the action was a violation of the Appropriations Clause and therefore considered “unlawful.”

Despite the ruling on funding, the July 2019 stay granted by the Supreme Court allows construction to continue on the wall.

And in October 2020, the U.S. Court of Appeals for the District of Columbia reversed a lower court’s dismissal of House Democrats’ lawsuit challenging the Trump Administration’s authority to use Defense Department funds for construction of the U.S.-Mexico border wall. In a 3-0 decision, the appeals court issued a decision permitting Democrats in Congress to challenge Trump’s use of military funds for the construction of the border wall.

That same month, United States Customs and Border Protection officials reported that the Trump Administration was considering having more than 80 miles of the U.S.-Mexico border wall located in the Rio Grande Valley and Laredo, Texas, painted black.

Agency officials told CNN an epoxy coating was being considered for when future barriers are built and could cost the project an extra $1 million per mile.

In December 2020, the 5th U.S. Circuit Court of Appeals approved the Trump administration’s plan in a 2-1 decision to divert $3.6 billion in funding from more than 100 military construction projects for border wall construction.

The decision overturned the lower court’s decision made by U.S. District Judge David Briones in 2019.

Biden’s proclamation from January 2021 redirected the funds and paused the construction, but did not shut down the project.

Despite federal court rulings and Biden's proclamation, Texas lawmakers have pushed to continue construction of the border wall. In June, Texas Gov. Greg Abbott announced a $250 million down payment for construction of hundreds of miles of border wall just months after Republican House Rep. Bryan Slaton introduced House Bill No. 2862.

The legislation intends to create a fund to pay for the projects and would also allocate the earnings on the balance of the fund and reimbursement of related expenditures. Around the same time, Congressman Clay Higgins, a Republican from Lousiana and ranking member of the House of Homeland Secuirty Subcommittee on Border Secuirty, introduced the Finish the Wall Act. 

In August, the Texas Department of Transportation announced that it was set to pay nearly $25 million for the construction of a roughly two-mile-long concrete border barrier. Slated to be constructed in Eagle Pass, the project also calls for a temporary fence near the right-of-way along State Loop 480, which the Department of Public Safety has reported to be a high-traffic area for immigration.

By the end of the month, the Texas House was reported to approve nearly $2 billion for the Texas-Mexico border wall project. The approval of funding is expected to triple the state's allocation for border security during the last biennium.

And in September, the Texas Facilities Commission announced that they had completed the evaluation phase for the Program Manager for the border wall. In reviewing the competing contractors for the project, the Commission stated that they would be recommending the joint venture of Dallas engineering firm Huitt-Zollars and Pittsburgh-based engineering firm Michael Baker International.

Last month, the U.S. Supreme Court reversed a 2020 lower court ruling that blocked an estimated $3.6 billion of U.S.-Mexico border wall funding proposed by the Trump Administration and returned the case to a judge for reassessment.

The Supreme Court granted the appeal to vacate the initial ruling from a federal district judge in California and the Ninth Circuit Court of Appeals that the funding shift was unlawful.


Tagged categories: Construction; Funding; Government; Laws and litigation; Lawsuits; NA; North America; President Biden; President Trump; Program/Project Management

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