What will happen to border wall construction under a Biden presidency?

TUCSON — Border advocacy and conservation groups are eagerly looking to Jan. 20, the date that Joe Biden will be sworn in as the 46th president.

Within hours, they are hoping Biden will reverse numerous immigration and border security policies, chief among them the construction of physical barriers along the U.S.-Mexico border.

Few symbols are more emblematic of President Donald Trump's administration than the construction of 400 miles of 30-foot bollards along large portions of the southwestern U.S. border, with the expected completion of an additional 50 miles before the end of the year.

U.S. taxpayers, rather than Mexico as often promised by Trump, are footing the multibillion-dollar bill. Congress has so far allocated $4.4 billion for construction over the past four years, and the Trump administration has awarded an additional $7 billion worth of border wall contracts using diverted military funds.

Biden has pledged to stop construction after he takes office in January. He told a panel of Black and Latino reporters in August that "there will not be another foot of wall constructed on my administration."

Legal experts said his incoming administration will have large latitude. But some of the most vocal critics of border wall construction over the past four years told The Arizona Republic they would like to see Biden go a step further and consider the possibility of tearing down certain sections of the new barriers.

"This monument to racism, if you will, was built at a huge expense, wasting billions of taxpayer dollars, and I think it's just irresponsible not to do something to address that, because future harms are still in place," said Vicki Gaubeca.

She's the director of the Southern Border Communities Coalition, a collective of 60 migrant and community groups along the U.S.-Mexico border. The coalition is opposed to construction and successfully sued the Trump administration in federal court over funding for the projects. 

Construction of the barriers has significantly altered the landscape of large swathes of the border. The Trump administration focused its efforts on the lands that the federal government already owns, particularly in Arizona, where nearly half of all planned barriers will go up by the time construction ends. 

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But the path towards construction started long before work crews broke ground, and critics said they want Biden to undo all the steps it took to get the barriers up.

The day after taking office, Trump issued an executive order directing his administration to prepare for construction. The U.S. Department of Homeland Security then waived over 60 laws to speed up construction. And when Congress did not allocate the money he wanted, Trump shut down the government and issued an emergency order in February 2019 that allowed him to tap into funds from the Treasury and Defense departments.

Advocates hope Biden will change course, but Biden will likely face opposition, too, including from the men and women patrolling the border, who repeatedly have expressed their support for Trump's plans to build newer, taller barriers. 

What are Biden's legal options?

When Biden takes office Jan. 20, he'll have a number of tools to stop or modify border wall construction plans. Some require little action, while others potentially could take a little longer. 

For example, Biden has pledged to "end the so-called National Emergency that siphons federal dollars from the Department of Defense to build a wall," according to information from his campaign website. 

Trump issued the declaration in February 2019; it has allowed him to tap into approximately $10.5 billion from the Pentagon and the Treasury Department's budgets, according to the Migration Policy Institute. Because it is not a law or statute, Biden could withdraw the declaration at any moment, similar to executive action.

The president-elect said he would prioritize investing in the ports of entry at the U.S.-Mexico border instead of building physical barriers. Numerous government agencies, including the Drug Enforcement Administration, have found that the majority of drugs smuggled into the country come through legal border crossings.

"We need smart, sensible policies that will actually strengthen our ability to catch these real threats by improving screening procedures at our legal ports of entry and investing in new technology," Biden's campaign website said.

When it comes to canceling or modifying existing and ongoing contracts for border wall construction, Biden will have to follow the procurement laws regulating federal government contracts.

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Even then, he will have a lot of leeway, according to John Horan, a professor on government procurement law at Georgetown University Law Center and a litigation attorney on government contracts for the law firm Faegre Drinker Biddle & Reath.

Horan said all government contracts come with two standard clauses that allow the government to terminate or change the contract for any reason. 

"Generally, the clauses treat the government more favorably, much more favorably, than if it was in the commercial world wherein the absence of such a clause ... one party would be effectively breaching the existing contract by telling the other party to stop performing," he said.

The decision to cancel the contracts can come directly from Biden, or from the people he appoints to his Cabinet positions for the Defense and Homeland Security departments, which manage contracts for border wall construction.

Legally, the timeline can move quickly, Horan added, but the border wall contractors could appeal and bring a claim against the U.S. government. A board of appeals for civilian or military contracts, or the Washington, D.C.-based Court of Federal Claims, which handles disputes with the federal government, would then settle it.

"There is an established regulatory process to stop these contracts, if the president should so decide, in an efficient and orderly manner that will also fairly compensate the contractors for the work that has been performed," Horan said. "So any thought that there's going to be a mess at the border, if he stops these contracts, would be misguided. That wouldn't have to happen by any means."

Less clear is what would happen to all the lawsuits over border wall construction that the Biden administration would inherit, including high-profile cases over border wall funding.

Last month, the Supreme Court announced that it would hear arguments in the legal challenge brought by the Southern Border Communities Coalition and the conservation group Sierra Club over the transfer of $2.5 billion in military funds for wall construction. 

Lower courts had ruled that the Trump administration had unlawfully diverted the money, in defiance of Congress' authority to set the budget. The Supreme Court has allowed construction to continue while the case is litigated.

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However, a Supreme Court ruling is expected to come down after the inauguration. By that time, Biden may have already ordered a stop to construction, or the Trump administration would have already finished construction using that money. 

Biden has said his administration would walk away from eminent domain lawsuits the federal governments have filed to seize private property, mostly along the Texas border, for border wall construction. 

"End. Stop. Done. Over. Not going to do it. Withdraw the lawsuits. We're out. We're not going to confiscate the land," Biden said in August. 

Advocates push for wall removal

The U.S. Border Patrol continues to assert that the new "border wall system" going up — which in addition to the barriers, also includes new roads, lighting and sensors — is effective in reducing drug- and human-smuggling.

Roy Villareal, the chief patrol agent for Border Patrol's Tucson Sector, said construction crews have finished building at least 100 miles of the 128 miles of new barriers planned for the Tucson Sector, which covers the eastern two-thirds of Arizona's border. 

The sector includes some of the most ecologically and culturally sensitive sites along the U.S.-Mexico border. Wall construction in the Tucson Sector has sparked ongoing protests and even some arrests.

"It's a sensitive issue, and I get it, Arizona is absolutely gorgeous, we want to preserve where we can and protect the environment, and we make those efforts," Villareal told The Republic. "The unfortunate part is you're not going to be able to satisfy everyone and everyone's concerns." 

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Wall critics said the Tucson Sector is one of the main areas where Biden needs to take a closer look at construction activity and analyze if the best option would be to remove the new barriers. 

One of the focus areas is Quitobaquito Springs, a natural oasis a few hundred feet north of the border within Organ Pipe Cactus National Monument. Water levels have decreased in recent months and critics blame groundwater pumping for construction, although the federal government disputes that.

The site is considered sacred and has supported generations of Hia-Ced and Tohono O'odham. The area has been the site of ongoing protests by tribal members who want the barriers gone. 

Brett Hartl, the government affairs director for the Center for Biological Diversity, said he was optimistic Biden would take action to remove portions of the wall in limited areas, including Quitobaquito Springs. 

"He (Biden) will appreciate, especially frankly given how the voting shook out in Arizona, how important it is to address the tribes' concerns, the very tribes that put him over the top in Arizona," he said. 

The center has sued the Trump administration over the federal government's use of waivers under the authority of the REAL ID Act of 2005 to speed up wall construction at the border. The case is still in court, but Hartl said he expects Biden to revoke the waivers.

Another focus area is the San Pedro River in southeastern Arizona, where conservationists worry the new border wall built across the river plain over the past few weeks will unnecessarily dam during heavy rains.

"We know from experience that those gates get blocked by debris, so what we have is basically a giant strainer across the last free-flowing river in Arizona. That wall needs to come down asap," said Dan Millis, with the Sierra Club's Grand Canyon Chapter.

Even government accountability watchdog groups such as non-partisan American Oversight, who have been auditing the federal governments' border wall construction plans, said it may make sense to remove barriers in some areas. 

Austin Evers, the executive director of American Oversight and a senior counsel for the State Department during then-President Barack Obama's second term, said the construction process under the Trump administration has been wasteful to U.S. taxpayers and driven by ideology rather than need. 

"I think to the extent there is unnecessary border construction that requires ongoing money to sustain, to maintain, then it might be in the nation's best interest to tear down rather than maintain something that is wasteful, not effective, and a monument to a grotesque campaign from 2016," he said.

Border wall construction forging ahead

As the debate about the future of border wall construction plays out in the coming weeks leading up to Biden's inauguration, work crews are still building new fencing along the entire border. 

U.S. Customs and Border Protection said they have secured enough funding to build a total of 738 miles of new border barriers. 

Russ McSpadden, the conservation videographer with the Center for Biological Diversity, has been documenting border wall construction in some of the most remote sections of the Arizona border using a drone. 

His videos show detonations and bulldozers clawing away at steep, rugged mountaintops in areas such as Guadalupe Canyon east of Douglas or the mountains near the Buenos Aires National Wildlife Refuge near Sasabe.

McSpadden said that while there is a big focus on Jan. 20, his biggest concern is what happens up in the remainder of the Trump administration.

"They're blasting continuously every day in Guadalupe Canyon, in Buenos Aires, and other places," he said. "It just seems like this is going to go on until Jan. 20, and the harm will be irreparable. So I don't know what the Biden administration is capable of. I would like to see the wall come down." 

In its 2021 draft budget released last week, the Republican-led Senate allocated an additional $2 billion for the construction of 82 miles of new physical barriers along the U.S.-Mexico border. The Democratic-led House of Representatives is unlikely to agree to the money.

Have any news tips or story ideas about the U.S.-Mexico border? Reach the reporter at rafael.carranza@arizonarepublic.com, or follow him on Twitter at @RafaelCarranza.

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