The Biden administration is using the authority of a 1996 statute to build a section of border wall in South Texas less than a year after a Republican senator proposed a bill to resume wall construction using the same legal authority.  

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 gives the secretary of Homeland Security the authority to “waive all legal requirements” that the secretary “determines necessary to ensure expeditious construction of barriers and roads” along the border. 

It is under this authority that the Biden administration has announced it will build 17 miles of border wall in Starr County, Texas, and under this authority that Sen. Ted Budd, R-N.C., proposed legislation months ago to resume wall construction.  

“Congress has provided to the Secretary of Homeland Security a number of authorities necessary to carry out DHS’s border security mission,” the announcement of the construction in the U.S. Federal Registry reads. “One of those authorities is section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996” and provides that “the Secretary of Homeland Security shall take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of ‘high illegal entry’ into the United States.” 

In February, Budd introduced the Build the Wall Now Act in the Democrat-controlled Senate, calling on the DHS secretary to use the authority of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to resume border wall construction.  

DHS Secretary Alejandro Mayorkas is using the 1996 statute to waive 26 laws to allow for the construction of the border wall in the high border crossing area of the Rio Grande Valley. Similarly, Budd’s bill called on the secretary to waive 25 of the 26 laws the Biden administration is using its executive power to waive to carry out the construction.  

“The crisis at the Southern border is one of the biggest challenges we’ve faced in years,” Budd told The Daily Signal Thursday. “That’s why my first bill as a senator was focused on fast-tracking border wall construction. Now, less than 8 months later, the Biden administration is proving why this bill was so necessary and using the very provision we highlighted.”  

Budd says the Biden administration “could and should do so much more,” adding that “President Biden created this crisis, but he doesn’t need to look very far to figure out how to fix it.” 

Eric Teetsel, vice president of government relations at The Heritage Foundation, said the “Biden administration has now acknowledged conservatives were right about the wall all along. They should acknowledge we’re right about the rest.” (The Daily Signal is the news outlet of The Heritage Foundation.)  

But the DHS says the construction of the wall does not indicate a change in the Biden administration’s policy.   

A DHS spokesperson told The Daily Signal that “The construction project you’re reading about today was appropriated during the prior administration, in 2019, and the government is legally required to utilize these funds for their appropriated purpose.” 

News of the new stretch of border wall comes as illegal alien encounters at the southern border have reached near record highs in recent weeks and some Democrat lawmakers, such as New York City Mayor Eric Adams, are calling on the Biden administration to do more to assist with the soaring number of illegal aliens entering U.S. cities.  

Money to secure America’s border remains a debated topic in Congress, and “as Congress is considering appropriations bills for multiple departments right now, it should defund the Biden administration’s open border operations, including the NGOs that receive billions of dollars to carry out their open border agenda,” said Lora Ries, director of the Border Security and Immigration Center at The Heritage Foundation. “Instead, Congress should give that funding to increase real border security and immigration enforcement.”  

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