As the GOP hopefuls make their rounds, the issue of border security has quickly become a focal point. The entire GOP field has responded to this matter with a unified voice of “Build the fence” as a way of appeasing conservatives with the issue while never truly understanding the logistics and consequences to building a fence on the Texas border that encompasses 2/3 of the US/MX border. How often have the candidates said it is the only rational way to provide security on our southern borders, I would venture to say too many times to count. While I agree our nation’s borders and points of entry must be secured, building a fence will not accomplish the task and serve to lull Americans with a false sense of security and violate US/MX treaty(s) while harming agriculture and remove the only water source for US cities along the Rio Grande.
Some have argued that the Department of Homeland (DHS) security has great authority and can bypass most if not all of the laws that impede the completion of the border fence. To those who hold this idea, pardon my frankness, you are part of the appeased masses that have failed to comprehend the issue in its entirety and have had the candidates pander to that lack of knowledge. As conservatives, we should pride ourselves in understanding what the issues are and what laws govern them so we may address and resolve them.
DHS does not and will never have greater authority than treaties entered into by the US and a foreign nation. Due to the complexity of this issue, I am providing links to all treaties, laws, regulations, and Executive Orders that pertain to the subject matter for your review and verification.
US/MX Border & Treaties
The Treaty of Guadalupe Hidalgo signed February 2, 1848 previsions called for Mexico to cede 55% of its territory, Arizona, California, New Mexico, Western Colorado, Nevada, and Utah. For this land, the US paid Mexico 15 million dollars in compensation for war-related damages to Mexican property. Article V of the treaty identifies the new Texas border at the Rio Grande; the US Senate ratified the treaty in March 1848. Border boundaries’ continued and were finally settled in the 1970 Boundary treaty (U.S.-Mex., Nov. 23, 1970, 23 U.S.T. 371)
Along with the Treaty of Guadalupe Hidalgo, the US and Mexico share the following treaties:
1936 Migratory Bird Convention,
1940 Western Hemisphere Convention,
1944 Water Treaty,
1983 La Paz Agreement,
1993 North American Agreement on Environmental Cooperation (NAAEC) and;
International Boundary and Water Commission.
As international treaties and protocols, these treaties have a legal standing that supersede many domestic legislation and reinforced by the customary international law – the Vienna Convention on the Law Treaties.
US Domestic Laws
Since 2/3 of the US/Mexico border is in TX, let us look at the largest and most burdensome portion of securing United States southern border and the domestic laws that would affect the project on the Rio Grande alone.
The moment the federal government decides to build anything – bridge, road or in this case a fence; a “higher standard” is set. The first step is an environmental impact assessment study, to discover the positive or negative affects the building project will have on flora, fauna, and wildlife. If a species is on a protected list and found during the study, the construction of the project is diverted from the area, causing additional costs and delays. The Rio Grande has it’s list of protected species and migratory animals. To add a layer of difficulty, The Rio Grande is classified as a “wetland” a detailed hydrologic and hydrographic study (H&H) would have to be completed.
Federal Emergency Management Agency (FEMA)
Permission from FEMA would also be required and DHS could not go around them because of Executive orders signed by both Republican and Democratic Presidents. I am sure you are asking yourself, what does FEMA have to do with building a border fence? When an object diverts water flow, spillways, and causes flooding, FEMA steps in to assist the affected party. The building of a fence is done without authorization of FEMA, the matte now becomes a “takings” issue “…the government’s interest that is being furthered by the regulation, the breadth or specificity of the regulation, and the extent of the regulation’s impact on the owner’s property rights and expectations”. . If the action were repeated over a 2,000-mile border, FEMA’s compensation to the landowners and legal action taken against the Federal Government for depriving or damaging them would be an astronomical cost. Every state, community, and city is required by law to participate in FEMA, if you are not, the member of that community cannot purchase a home that is FDIC insured. With the collapse of the housing market, how many middle class American say they have enough cash on hand to buy a home?
If this litany of laws was not long enough, there is also Presidential Executive Orders regarding this matter:
11988 – “…adverse impacts associated with the occupancy and modification of floodplains and to avoid direct or indirect support of floodplain development wherever there is a practicable alternative”
11990 –“…modification of wetlands and to avoid direct or indirect support of new construction in wetlands wherever there is a practicable alternative”
12898 – “…addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations in the United States and its territories and possessions” and;
44 CRR part 9 – “…(i) Avoid the destruction or modification of the wetlands; (ii) Avoid direct or indirect support of new construction in wetlands; (iii) Minimize the destruction, loss or degradation of wetlands; and (iv) Preserve and enhance the natural and beneficial values of wetlands .
If your head is spinning from the laws, treaties and regulations and if you still have doubts regarding the feasibility of building a border fence, we still have not addresses the only drinking water for over 2,200,000 Americans who live along the TX/MX border. Then there is the TX agriculture that could no longer irrigate their crops because of the blocked water source. With recent droughts, fires and flooding throughout the US, our food supply has dwindled and adding these Texas farmers to lost crops would only exacerbate the matter. What of the tributaries that flow into the Rio Grande, that water would flood Northern areas of the US and would encounter the same issues with FEMA and adverse affects due to “takings” issue. This is a manmade disaster waiting to happen, a modern dust bowl that can easily be obverted if we just create a wall of boots on the ground.
When you hear politicians, pundits and friends demand we build a wall on the US/MX border and claim it is the only way to secure the border, please share this knowledge with them. Be bold when questioning desired leaders/GOP candidates and let them know – We are conservatives, armed with facts; I know these answers, why don’t you?