[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 422 Introduced in Senate (IS)]

<DOC>






118th CONGRESS
  1st Session
                                 S. 422

To remove legal impediments preventing construction of a border barrier 
 along the international border between the United States and Mexico, 
improve the construction requirements for such barrier, make previously 
   appropriated funds available for constructing such barrier until 
                   expended, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 14, 2023

Mr. Budd (for himself, Mr. Tillis, Mr. Risch, Mr. Crapo, Mr. Cruz, Mr. 
Daines, Mr. Rounds, and Mrs. Blackburn) introduced the following bill; 
which was read twice and referred to the Committee on Homeland Security 
                        and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
To remove legal impediments preventing construction of a border barrier 
 along the international border between the United States and Mexico, 
improve the construction requirements for such barrier, make previously 
   appropriated funds available for constructing such barrier until 
                   expended, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Build the Wall Now Act''.

SEC. 2. RESUME CONSTRUCTION OF BARRIERS AND ROADS ALONG UNITED STATES 
              AND MEXICO BORDER.

    (a) Definitions.--In this section:
            (1) Department.--The term ``Department'' means the 
        Department of Homeland Security.
            (2) Physical barriers.--The term ``physical barriers'' has 
        the meaning given such term in section 102(e) of the Illegal 
        Immigration Reform and Immigrant Responsibility Act of 1996, as 
        added by section 3(5) of this Act.
            (3) Secretary.--The term ``Secretary'' means the Secretary 
        of Homeland Security.
            (4) Tactical infrastructure; technology.--The terms 
        ``tactical infrastructure'' and ``technology'' have the 
        meanings given such terms in section 102(e) of the Illegal 
        Immigration Reform and Immigrant Responsibility Act of 1996, as 
        added by section 3(5) of this Act.
    (b) In General.--
            (1) Immediate resumption of border barrier construction.--
        Not later than 1 day after the date of the enactment of this 
        Act, the Secretary shall resume all projects relating to the 
        construction of physical barriers, tactical infrastructure, and 
        technology along the international border between the United 
        States and Mexico that were underway, or being planned for, 
        prior to January 20, 2021.
            (2) No cancellations.--The Secretary may not cancel any 
        contract for activities related to the construction of the 
        border barrier system that was entered into on or before 
        January 20, 2021.
            (3) Use of funds.--To carry out this section, the Secretary 
        shall expend all funds that were appropriated or explicitly 
        obligated for the construction of the border barrier system on 
        or after October 1, 2016.
    (c) Uphold Negotiated Agreements.--The Secretary shall ensure that 
all agreements entered into before January 20, 2021, that were executed 
in writing between the Department and any State, local, or Tribal 
government, private citizen, or other stakeholder are honored by the 
Department relating to current and future construction of the border 
barrier system in accordance with such agreements.
    (d) Availability of Funds.--Notwithstanding any other provision of 
law, any amount appropriated or otherwise made available during fiscal 
year 2018, 2019, 2020, or 2021 for any project relating to the 
construction of physical barriers, tactical infrastructure, and 
technology along the southern border shall remain available until 
expended.
    (e) Use of Funds.--Any amounts appropriated or otherwise made 
available for fiscal year 2021 that remain available pursuant to 
subsection (d) may only be used for barriers, technology, or roads 
that--
            (1) use--
                    (A) operationally effective designs deployed as of 
                the date of enactment of the Consolidated 
                Appropriations Act, 2017 (Public Law 115-31), such as 
                currently deployed steel bollard designs, that 
                prioritize agent safety; or
                    (B) operationally effective adaptations of such 
                designs that help mitigate community or environmental 
                impacts of barrier system construction, including 
                adaptations based on consultation with jurisdictions 
                within which barrier system will be constructed; and
            (2) are constructed in the highest priority locations as 
        identified in the Border Security Improvement Plan.

SEC. 3. IMPROVING THE REQUIREMENTS FOR BARRIERS ALONG THE SOUTHERN 
              BORDER.

    (a) In General.--Section 102 of the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996 (division C of Public Law 104-208; 
8 U.S.C. 1103 note) is amended--
            (1) in subsection (a), by striking ``to install'' and all 
        that follows and inserting ``(including the removal of 
        obstacles to detection of illegal entrants) to design, test, 
        construct, install, deploy, integrate, and operate physical 
        barriers, tactical infrastructure, and technology in the 
        vicinity of the United States border to achieve situational 
        awareness and operational control of the border and deter, 
        impede, and detect illegal activity in high traffic areas.'';
            (2) in subsection (b)--
                    (A) in the subsection heading, by striking 
                ``Fencing and Road Improvements'' and inserting 
                ``Physical Barriers'';
                    (B) in paragraph (1)--
                            (i) in subparagraph (A)--
                                    (I) by striking ``subsection (a)'' 
                                and inserting ``this section''; and
                                    (II) by striking ``roads, lighting, 
                                cameras, and sensors to gain'' and 
                                inserting ``tactical infrastructure, 
                                and technology to achieve situational 
                                awareness and'';
                            (ii) by amending subparagraph (B) to read 
                        as follows:
                    ``(B) Physical barriers and tactical 
                infrastructure.--The Secretary, in carrying out this 
                section, shall deploy along the United States border 
                the most practical and effective physical barriers and 
                tactical infrastructure available for achieving 
                situational awareness and operational control of the 
                border.'';
                            (iii) in subparagraph (C)--
                                    (I) in clause (i)--
                                            (aa) by striking ``the 
                                        Secretary of the Interior, the 
                                        Secretary of Agriculture, 
                                        States, local governments, 
                                        Indian tribes, and'' and 
                                        inserting ``appropriate Federal 
                                        agency partners, appropriate 
                                        representatives of Federal, 
                                        State, Tribal, and local 
                                        governments, and appropriate 
                                        private''; and
                                            (bb) by striking ``fencing 
                                        is'' and inserting ``physical 
                                        barriers are''; and
                                    (II) in clause (ii)--
                                            (aa) in subclause (I), by 
                                        striking ``or'' after the 
                                        semicolon at the end;
                                            (bb) by amending subclause 
                                        (II) to read as follows:
                                    ``(II) delay the transfer to the 
                                United States of the possession of 
                                property or affect the validity of any 
                                property acquisition by the United 
                                States by purchase or eminent domain, 
                                or to otherwise affect the eminent 
                                domain laws of the United States or of 
                                any State; or''; and
                                            (cc) by adding at the end 
                                        the following:
                                    ``(III) create any right or 
                                liability for any party.''; and
                            (iv) by striking subparagraph (D);
                    (C) in paragraph (2)--
                            (i) by striking ``Attorney General'' and 
                        inserting ``Secretary of Homeland Security''; 
                        and
                            (ii) by striking ``this subsection and 
                        shall commence construction of fences'' and 
                        inserting ``this section and shall commence the 
                        construction of physical barriers'';
                    (D) by amending paragraph (3) to read as follows:
            ``(3) Agent safety.--In carrying out this section, the 
        Secretary of Homeland Security, when designing, constructing, 
        and deploying physical barriers, tactical infrastructure, or 
        technology, shall incorporate such safety features into such 
        design, construction, or deployment of such physical barriers, 
        tactical infrastructure, or technology, as the case may be, 
        that the Secretary determines, in consultation with the labor 
        organization representing agents of U.S. Border Patrol, are 
        necessary to maximize the safety and effectiveness of officers 
        or agents of the Department of Homeland Security or of any 
        other Federal agency deployed in the vicinity of such physical 
        barriers, tactical infrastructure, or technology.''; and
                    (E) in paragraph (4), by striking ``this 
                subsection'' and inserting ``this section'';
            (3) by striking subsection (c);
            (4) by inserting after subsection (b) the following:
    ``(c) Technology.--In carrying out this section, the Secretary of 
Homeland Security shall deploy along the United States border the most 
practical and effective technology available for achieving situational 
awareness and operational control of the border.''; and
            (5) by adding at the end the following:
    ``(e) Definitions.--In this section:
            ``(1) Advanced unattended surveillance sensors.--The term 
        `advanced unattended surveillance sensors' means sensors that 
        utilize an onboard computer to analyze detections in an effort 
        to discern between vehicles, humans, and animals, and 
        ultimately filter false positives prior to transmission.
            ``(2) High traffic areas.--The term `high traffic areas' 
        means areas in the vicinity of the United States border that--
                    ``(A) are within the responsibility of U.S. Customs 
                and Border Protection; and
                    ``(B) have significant unlawful cross-border 
                activity, as determined by the Secretary of Homeland 
                Security.
            ``(3) Operational control.--The term `operational control' 
        has the meaning given such term in section 2(b) of the Secure 
        Fence Act of 2006 (Public Law 109-367; 8 U.S.C. 1701 note).
            ``(4) Physical barriers.--The term `physical barriers' 
        includes reinforced fencing, the border barrier system, and 
        levee walls.
            ``(5) Situational awareness.--The term `situational 
        awareness' has the meaning given such term in section 
        1092(a)(7) of the National Defense Authorization Act for Fiscal 
        Year 2017 (Public Law 114-328; 6 U.S.C. 223(a)(7)).
            ``(6) Tactical infrastructure.--The term `tactical 
        infrastructure' includes boat ramps, access gates, checkpoints, 
        lighting, and roads.
            ``(7) Technology.--The term `technology' means border 
        surveillance and detection technology, including--
                    ``(A) tower-based surveillance technology;
                    ``(B) deployable, lighter-than-air ground 
                surveillance equipment;
                    ``(C) Vehicle and Dismount Exploitation Radars 
                (VADER);
                    ``(D) 3-dimensional, seismic acoustic detection and 
                ranging border tunneling detection technology;
                    ``(E) advanced unattended surveillance sensors;
                    ``(F) mobile vehicle-mounted and man-portable 
                surveillance capabilities;
                    ``(G) unmanned aircraft systems; and
                    ``(H) other border detection, communication, and 
                surveillance technology.
            ``(8) Unmanned aircraft system.--The term `unmanned 
        aircraft system' has the meaning given such term in section 
        44801(12) of title 49, United States Code.''.
    (b) Existing Waivers Not Affected.--A waiver issued by the 
Secretary of Homeland Security pursuant to section 102(c) of the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 
(division C of Public Law 104-208; 8 U.S.C. 1103 note) that was 
published in the Federal Register before the date of the enactment of 
this Act shall not be affected by the amendment made by subsection (a).

SEC. 4. RECODIFYING THE SECRETARY OF HOMELAND SECURITY'S WAIVER 
              AUTHORITY; ADDING PREVIOUSLY WAIVED LEGAL REQUIREMENTS.

    (a) In General.--Section 103 of the Immigration and Nationality Act 
(8 U.S.C. 1103) is amended by adding at the end the following:
    ``(h) Waiver Authority.--
            ``(1) In general.--Notwithstanding any other provision of 
        law, the Secretary of Homeland Security shall have the 
        authority to waive all legal requirements that the Secretary 
        determines necessary to ensure the expeditious design, testing, 
        construction, installation, deployment, integration, and 
        operation of the physical barriers, tactical infrastructure, 
        and technology under this section and section 102 of the 
        Illegal Immigration Reform and Immigrant Responsibility Act of 
        1996 (division C of Public Law 104-208; 8 U.S.C. 1103 note). 
        Such waiver authority shall also apply with respect to any 
        maintenance carried out on such physical barriers, tactical 
        infrastructure, or technology. Any such decision by the 
        Secretary shall be effective upon publication in the Federal 
        Register.
            ``(2) Notification.--Not later than 7 days after the date 
        on which the Secretary of Homeland Security exercises the 
        waiver authority under paragraph (1), the Secretary shall 
        notify the Committee on Homeland Security of the House of 
        Representatives and the Committee on Homeland Security and 
        Governmental Affairs of the Senate of such waiver.
            ``(3) Federal court review.--
                    ``(A) In general.--The district courts of the 
                United States shall have exclusive jurisdiction to hear 
                all causes or claims arising from any action 
                undertaken, or any decision made, by the Secretary of 
                Homeland Security pursuant to paragraph (1). A cause of 
                action or claim may only be brought alleging a 
                violation of the Constitution of the United States. The 
                court shall not have jurisdiction to hear any claim not 
                specified in this subparagraph.
                    ``(B) Time for filing of complaint.--Any cause or 
                claim brought pursuant to subparagraph (A) shall be 
                filed not later than 60 days after the date of the 
                action or decision made by the Secretary of Homeland 
                Security. A claim shall be barred unless it is filed 
                within the time specified.
                    ``(C) Ability to seek appellate review.--An 
                interlocutory or final judgment, decree, or order of 
                the district court may be reviewed only upon petition 
                for a writ of certiorari to the Supreme Court of the 
                United States.
            ``(4) Previously waived legal requirements.--
                    ``(A) In general.--Any project relating to the 
                construction of physical barriers, tactical 
                infrastructure, and technology along the international 
                border between the United States and Mexico shall be 
                exempt from any law or regulation referred to in 
                subparagraph (B).
                    ``(B) Elements.--The laws and regulations referred 
                to in this subparagraph are--
                            ``(i) an Act to facilitate the work of the 
                        Forest Service (Public Law 87-869);
                            ``(ii) subchapter II of chapter 5 and 
                        chapter 7 of title 5, United States Code 
                        (commonly known as the `Administrative 
                        Procedure Act');
                            ``(iii) the Arizona Desert Wilderness Act 
                        (6 U.S.C. 460ddd et seq.);
                            ``(iv) the Arizona-Idaho Conservation Act 
                        of 1988 (Public Law 100-696);
                            ``(v) the Act of June 8, 1940 (16 U.S.C. 
                        668 et seq.) (commonly known as the `Bald and 
                        Golden Eagle Protection Act');
                            ``(vi) the Clean Air Act (42 U.S.C. 7401 et 
                        seq.);
                            ``(vii) the Federal Water Pollution Control 
                        Act (33 U.S.C. 1151 et seq.) (commonly known as 
                        the `Clean Water Act');
                            ``(viii) the Coastal Zone Management Act 
                        (16 U.S.C. 1451 et seq.);
                            ``(ix) the Comprehensive Environmental 
                        Response, Compensation, and Liability Act of 
                        1980 (42 U.S.C. 9601 et seq.);
                            ``(x) the Endangered Species Act of 1973 
                        (16 U.S.C. 1531 et seq.);
                            ``(xi) the Farmland Protection Policy Act 
                        (7 U.S.C. 4201 et seq.);
                            ``(xii) the Federal Cave Resources 
                        Protection Act of 1988 (16 U.S.C. 4301 et 
                        seq.);
                            ``(xiii) chapter 63 of title 31, United 
                        States Code (originally enacted as the `Federal 
                        Grants and Cooperative Agreements Act of 
                        1977');
                            ``(xiv) the Federal Land Policy and 
                        Management Act of 1976 (43 U.S.C. 1701 et 
                        seq.);
                            ``(xv) the Fish and Wildlife Coordination 
                        Act (16 U.S.C. 662 et seq.);
                            ``(xvi) the Migratory Bird Conservation Act 
                        of 1929 (16 U.S.C. 715 et seq.);
                            ``(xvii) the Migratory Bird Treaty Act (16 
                        U.S.C. 703 et seq.);
                            ``(xviii) the Military Lands Withdrawal Act 
                        of 1999 (title XXX of Public Law 106-65);
                            ``(xix) the Act of June 12, 1960 (Public 
                        Law 86-517; 16 U.S.C. 528 et seq.) (commonly 
                        known as the `Multiple-Use and Sustained-Yield 
                        Act of 1960');
                            ``(xx) the National Environmental Policy 
                        Act of 1969 (42 U.S.C. 4321 et seq.);
                            ``(xxi) the National Fish and Wildlife Act 
                        of 1956 (16 U.S.C. 742a et seq.);
                            ``(xxii) the National Forest Management Act 
                        of 1976 (16 U.S.C. 472a et seq.);
                            ``(xxiii) the National Historic 
                        Preservation Act (16 U.S.C. 470 et seq.);
                            ``(xxiv) the National Parks and Recreation 
                        Act of 1978 (Public Law 95-625);
                            ``(xxv) the National Trails System Act (16 
                        U.S.C. 1241 et seq.);
                            ``(xxvi) the National Wildlife Refuge 
                        System Administration Act of 1966 (16 U.S.C. 
                        668dd et seq.);
                            ``(xxvii) the Native American Graves 
                        Protection and Repatriation Act (25 U.S.C. 3001 
                        et seq.);
                            ``(xxviii) the Noise Control Act of 1972 
                        (42 U.S.C. 4901 et seq.);
                            ``(xxix) the Otay Mountain Wilderness Act 
                        of 1999 (Public Law 106-145);
                            ``(xxx) subtitle D of title VI of the 
                        Omnibus Public Land Management Act of 2009 (16 
                        U.S.C. 470aaa et seq.) (commonly known as the 
                        `Paleontological Resources Preservation Act');
                            ``(xxxi) section 10 of the Act of August 4, 
                        1939 (43 U.S.C. 387) (commonly known as the 
                        `Reclamation Project Act of 1939');
                            ``(xxxii) the Act of March 3, 1899 (30 
                        Stat. 1121, chapter 425; (33 U.S.C. 403 et 
                        seq.) (commonly known as the `Rivers and 
                        Harbors Act of 1899');
                            ``(xxxiii) the Safe Drinking Water Act (42 
                        U.S.C. 300f et seq.);
                            ``(xxxiv) the Sikes Act (16 U.S.C. 670 et 
                        seq.);
                            ``(xxxv) the Small Business Act (15 U.S.C. 
                        631 et seq.);
                            ``(xxxvi) the Solid Waste Disposal Act (42 
                        U.S.C. 6901 et seq.) (commonly known as the 
                        `Resource Conservation and Recovery Act of 
                        1976');
                            ``(xxxvii) the Wild and Scenic Rivers Act 
                        (16 U.S.C. 1271 et seq.);
                            ``(xxxviii) the Act of December 15, 1971 
                        (16 U.S.C. 1331 et seq.) (commonly known as the 
                        `Wild Free-Roaming Horses and Burros Act of 
                        1971');
                            ``(xxxix) the Wilderness Act (16 U.S.C. 
                        1131 et seq.);
                            ``(xl) sections 2304, 2304c, 2305, 2505a, 
                        and 2306a of title 10, United States Code;
                            ``(xli) section 550 of title 40, United 
                        States Code;
                            ``(xlii) title 41, United States Code;
                            ``(xliii) sections 100101(a), 100751(a), 
                        and 102101 of title 54, United States Code;
                            ``(xliv) chapters 1003, 1005, 1007, 1009, 
                        1021, 3125, 3201, and 3203 of title 54, United 
                        States Code;
                            ``(xlv) division A of subtitle III of title 
                        54, United States Code;
                            ``(xlvi) part 125 of title 13, Code of 
                        Federal Regulations; and
                            ``(xlvii) sections 16.504, 16.505, 17.205, 
                        17.207, 22.404, 22.404-5, and 28.102-1 of title 
                        48, Code of Federal Regulations.
            ``(5) Definitions.--In this subsection, the terms `physical 
        barriers', `tactical infrastructure', and `technology' have the 
        meanings given such terms in section 102(e) of the Illegal 
        Immigration Reform and Immigrant Responsibility Act of 1996 
        (division C of Public Law 104-208; 8 U.S.C. 1103 note).''.
    (b) Clerical Amendment.--The table of contents of the Immigration 
and Nationality Act (8 U.S.C. 1101 et seq.) is amended by striking the 
item relating to section 103 and inserting the following:

``Sec. 103. Powers and duties of the Secretary, the Under Secretary, 
                            and the Attorney General.''.

SEC. 5. PROHIBITION AGAINST USE OF FUNDS TO IMPLEMENT OR ENFORCE 
              PRESIDENTIAL PROCLAMATION 10142.

    No funds, resources, or fees made available to the Secretary of 
Homeland Security, or to any other official of any Federal agency by 
any Act of Congress for any fiscal year, may be used to implement or 
enforce Presidential Proclamation 10142 of January 20, 2021 (86 Fed. 
Reg. 7225).
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