[House Report 116-45]
[From the U.S. Government Publishing Office]


116th Congress    }                                     {       Report
                        HOUSE OF REPRESENTATIVES
 1st Session      }                                     {       116-45

======================================================================



 
          RESCINDING DHS' WAIVER AUTHORITY FOR BORDER WALL ACT

                                _______
                                

  May 2, 2019.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Thompson of Mississippi, from the Committee on Homeland Security, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 1232]

    The Committee on Homeland Security, to whom was referred 
the bill (H.R. 1232) to amend the Illegal Immigration Reform 
and Immigrant Responsibility Act of 1996 to repeal certain 
waiver authority relating to the construction of new border 
barriers, and for other purposes, having considered the same, 
report favorably thereon without amendment and recommend that 
the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     2
Hearings.........................................................     3
Committee Consideration..........................................     3
Committee Votes..................................................     4
Committee Oversight Findings.....................................     4
C.B.O. Estimate, New Budget Authority, Entitlement Authority, and 
  Tax Expenditures...............................................     4
Federal Mandates Statement.......................................     5
Duplicative Federal Programs.....................................     5
Performance Goals and Objectives.................................     5
Advisory on Earmarks.............................................     5
Section-by-Section Analysis of the Legislation...................     5
Changes in Existing Law Made by the Bill, as Reported............     6
Minority Views...................................................     9

                          Purpose and Summary

    H.R. 1232, the ``Rescinding DHS' Waiver Authority for 
Border Wall Act'' repeals the overly broad authority of the 
Secretary of Homeland Security (Secretary) to waive all legal 
requirements that, in the Secretary's view, may delay 
construction of barriers and roads at the U.S. border. Under 
current law, the Secretary has sole discretion to determine 
what laws and regulations need to be waived and judicial review 
over these decisions is extremely limited. Rescinding this 
authority would ensure that the Department of Homeland Security 
adheres to the same laws any other federal department or agency 
would have to follow.

                  Background and Need for Legislation

    In 2005, the Secretary of Homeland Security was granted 
unilateral authority to waive all local, State and Federal laws 
to expedite the construction of fences, concrete slabs, or 
other infrastructure at the border pursuant to a section 
enacted in an emergency supplemental appropriations funding 
package enacted for the Global War on Terror and disaster 
relief.\1\ This authority allows the Department of Homeland 
Security to bypass any law, regulation, treaty, and ordinance 
that it deems to be an impediment to constructing the border 
wall and other infrastructure between ports of entry. Laws that 
have been subject to the waiver include bedrock Federal 
environmental laws such as the National Environmental Policy 
Act [NEPA], the Endangered Species Act, the Clean Water Act, 
the National Historic Preservation Act, the Migratory Bird 
Treaty Act, the Clean Air Act, the Archeological Resources 
Protection Act, the Safe Drinking Water Act, the Noise Control 
Act, the Solid Waste Disposal Act, the Comprehensive 
Environmental Response, Compensation, and Liability Act, the 
Archaeological and Historic Preservation Act, the Antiquities 
Act, the Historic Sites, Buildings, and Antiquities Act, the 
Wild and Scenic Rivers Act, the Farmland Protection Policy Act, 
the Coastal Zone Management Act, the Wilderness Act, the 
Federal Land Policy and Management Act, the National Wildlife 
Refuge System Administration Act, the Fish and Wildlife Act of 
1956, the Fish and Wildlife Coordination Act, the 
Administrative Procedure Act, the Otay Mountain Wilderness Act 
of 1999, the California Desert Protection Act [Sections 102(29) 
and 103 of Title I], the National Park Service Organic Act, the 
National Park Service General Authorities Act, the National 
Parks and Recreation Act of 1978 [Sections 401(7), 403, and 
404], the Arizona Desert Wilderness Act [Sections 301(A)-(F)], 
the Rivers and Harbors Act of 1899, the Eagle Protection Act, 
the Native American Graves Protection and Repatriation Act, the 
American Indian Religious Freedom Act, the Religious Freedom 
Restoration Act, the National Forest Management Act of 1976, 
the Multiple Use and Sustained Yield Act of 1960, the Military 
Lands Withdrawal Act of 1999, the Sikes Act, the Arizona-Idaho 
Conservation Act of 1988, the Federal Grant and Cooperative 
Agreement Act of 1977, the Migratory Bird Conservation Act, the 
Paleontological Resources Preservation Act, the Federal Cave 
Resources Protection Act of 1988, the National Trails System 
Act, the National Wildlife Refuge System Improvement Act of 
1997, the Reclamation Project Act of 1939 [Section 10], the 
Wild Horse and Burro Act.
---------------------------------------------------------------------------
    \1\Emergency Supplemental Appropriations Act for Defense, the 
Global War on Terror, and Tsunami Relief, 2005, P.L. 109-13, 2005.
---------------------------------------------------------------------------
    At least one waiver issued under this authority resulted in 
catastrophic damage in a border community. In 2008, during a 
rain storm in the city of Nogales, Arizona, a storm run-off 
channel was blocked by a five-foot-tall concrete barrier that 
the Department of Homeland Security built pursuant to this 
waiver authority. The border barrier prevented storm water from 
reaching a water treatment center and placed such pressure on 
underground pipes that it resulted in a ten-foot-sinkhole that 
caused upwards of $8 million in damage to downtown Nogales.\2\
---------------------------------------------------------------------------
    \2\Melissa Del Bosque, Trump's Border Wall Could Cause Deadly 
Flooding in Texas. Federal Officials Are Planning to Build It Anyway, 
Texas Monthly, December 2018.
---------------------------------------------------------------------------
    There is no requirement that the Secretary consult anyone, 
even on issues or laws that are not under the Department of 
Homeland Security's purview or on which the Secretary has no 
expertise, before the Secretary exercises this discretion. 
Moreover, if the waiver of laws and the ensuing construction of 
this border infrastructure results in damage to property or 
injury to individuals, there is no requirement that the 
Department mitigate or respond to the resulting harm.
    In addition to this unilateral waiver ability, the law also 
largely insulates the Secretary's decision from judicial 
review. Exclusive jurisdiction is granted to the district 
courts of the United States and appellate review can only occur 
upon petition for a writ of certiorari to the Supreme Court of 
the United States. Moreover, the courts can only hear claims 
that allege a violation of the Constitution of the United 
States. To further limit any possibility of judicial review, a 
complaint must be brought within 60 days of the waiver decision 
by the Secretary.
    This authority has been exercised five times in the twelve 
years prior to the Trump Administration. In contrast, the Trump 
Administration has exercised this waiver authority nine times 
in a little over two years. As waivers become more frequent, 
the potential for unintended consequences and resulting harm 
increases.
    Given the vastness of this waiver authority, the impacts of 
the exercise of this authority on landowners and border 
communities, the limitations on judicial remedies for impacted 
landowners in border communities, and the increasing frequency 
of these waivers by the Trump Administration, it is more 
important than ever that this authority be rescinded.

                                Hearings

    This legislation was informed by a Homeland Security 
Committee hearing on March 6, 2019 entitled, ``The Way Forward 
on Border Security.'' The Committee received testimony from the 
Honorable Kirstjen Nielsen, Secretary of the Department of 
Homeland Security.

                        Committee Consideration

    The Committee met on March 13, 2019, to consider H.R. 1232 
and ordered the measure to be reported to the House with a 
favorable recommendation, without amendment, by a recorded vote 
of 17 yeas and 12 nays.

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list the recorded 
votes on the motion to report legislation and amendments 
thereto.
    The Committee on Homeland Security considered H.R. 1232 on 
March 13, 2019, and took the following vote:
    On Ordering to be reported was Agreed to: 17 yeas and 12 
nays (Roll Call Vote No. 1). The vote was as follows:

                            ROLL CALL NO. 1

                               H.R. 1232

    On ordering to be reported was AGREED TO, by a recorded 
vote of 17 yeas and 12 nays (Roll Call Vote No. 1). The vote 
was as follows:

----------------------------------------------------------------------------------------------------------------
              Representative                 Yea         Nay             Representative           Yea      Nay
----------------------------------------------------------------------------------------------------------------
Mr. Thompson, Mississippi, Chair.........       X   ............  Mr. Rogers, Alabama, Ranking  .......       X
                                                                   Member.
Ms. Jackson Lee, Texas...................  .......  ............  Mr. King, New York..........  .......       X
Mr. Langevin, Rhode Island...............       X   ............  Mr. McCaul, Texas...........  .......       X
Mr. Richmond, Louisiana..................       X   ............  Mr. Katko, New York.........  .......       X
Mr. Payne, New Jersey....................       X   ............  Mr. Ratcliffe, Texas........  .......  .......
 Miss Rice, New York.....................       X   ............  Mr. Walker, North Carolina .  .......       X
Mr. Correa, California...................       X   ............  Mr. Higgins, Louisiana .....  .......       X
Ms. Torres Small, New Mexico.............       X   ............  Mrs. Lesko, Arizona.........  .......       X
Mr. Rose, New York.......................       X   ............  Mr. Green, Tennessee........  .......       X
Ms. Underwood, Illinois..................       X   ............  Mr. Taylor, Texas...........  .......       X
Ms. Slotkin, Michigan....................       X   ............  Mr. Joyce, Pennsylvania.....  .......       X
Mr. Cleaver, Missouri....................       X   ............  Mr. Crenshaw, Texas ........  .......       X
Mr. Green, Texas.........................       X   ............  Mr. Guest, Mississippi......  .......       X
Ms. Clarke, New York.....................       X   ............
Ms. Titus, Nevada........................       X   ............
Mrs. Watson Coleman, New Jersey..........       X   ............
Ms. Barragan, California.................       X   ............
Mrs. Demings, Florida....................       X   ............
                                                                                               -----------------
                                                                  Vote Total                        17       12
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

Congressional Budget Office Estimate New Budget Authority, Entitlement 
                    Authority, and Tax Expenditures

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause (3)(c)(3) of rule XIII of the Rules 
of the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has requested 
but not received a cost estimate for this bill from the 
Director of Congressional Budget Office.
    The Committee has requested but not received from the 
Director of the Congressional Budget Office a statement as to 
whether this bill contains any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.

                       Federal Mandates Statement

    An estimate of Federal mandates prepared by the Director of 
the Congressional Budget Office pursuant to section 423 of the 
Unfunded Mandates Reform Act was not made available to the 
Committee in time for the filing of this report. The Chairman 
of the Committee shall cause such estimate to be printed in the 
Congressional Record upon its receipt by the Committee.

                      Duplicative Federal Programs

    Pursuant to clause 3(c) of rule XIII, the Committee finds 
that H.R. 1232 does not contain any provision that establishes 
or reauthorizes a program known to be duplicative of another 
Federal program.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
1232 would rescind the Secretary's ability to unilaterally 
waive any local, State, or Federal law to expedite the building 
of a border wall or other infrastructure between ports of 
entry.

                          Advisory on Earmarks

    In compliance with rule XXI of the Rules of the House of 
Representatives, this bill, as reported, contains no 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(d), 9(e), or 9(f) of the rule 
XXI.

             Section-by-Section Analysis of the Legislation


Section 1. Short title

    This section provides that this bill may be cited as the 
``Rescinding DHS' Waiver Authority for Border Wall Act''.

Sec. 2. Repeal of waiver authority for the construction of new border 
        barriers

    This section repeals the waiver authority related to the 
construction of new border barriers by striking subsection (c) 
of Section 102 of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (division C of P.L. 104-208, 8 
U.S.C. 1103 note), as amended by the Emergency Supplemental 
Appropriations Act for Defense, the Global War on Terror, and 
Tsunami Relief, 2005, (P.L. 109-13).
    This section will take away the Secretary's ability to 
waive, without prior consultation or notice to border 
landowners, border communities, border state Governors, or 
other interested parties, that a law or regulation must be 
waived to expedite the building of infrastructure along the 
border. By rescinding this extraordinary waiver authority--that 
prioritizes the building of a border wall and border 
infrastructure between ports of entry above all other Federal 
infrastructure and at the expense of the environment, economy, 
and culture of border communities--the legislation would 
require the Department of Homeland Security to follow all the 
laws and regulations that every other federal entity must 
ordinarily follow for a construction project.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets and 
existing law in which no change is proposed is shown in roman):

  ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996

DIVISION C--ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT 
OF 1996

           *       *       *       *       *       *       *


 TITLE I--IMPROVEMENTS TO BORDER CONTROL, FACILITATION OF LEGAL ENTRY, 
                        AND INTERIOR ENFORCEMENT

Subtitle A--Improved Enforcement at the Border

           *       *       *       *       *       *       *


SEC. 102. IMPROVEMENT OF BARRIERS AT 
                    BORDER.

  (a) In General.--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.
  (b) Construction of Fencing and Road Improvements Along the 
Border.--
          (1) Additional fencing along southwest border.--
                  (A) Reinforced fencing.--In carrying out 
                subsection (a), the Secretary of Homeland 
                Security shall construct reinforced fencing 
                along not less than 700 miles of the southwest 
                border where fencing would be most practical 
                and effective and provide for the installation 
                of additional physical barriers, roads, 
                lighting, cameras, and sensors to gain 
                operational control of the southwest border.
                  (B) Priority areas.--In carrying out this 
                section, the Secretary of Homeland Security 
                shall--
                          (i) identify the 370 miles, or other 
                        mileage determined by the Secretary, 
                        whose authority to determine other 
                        mileage shall expire on December 31, 
                        2008, along the southwest border where 
                        fencing would be most practical and 
                        effective in deterring smugglers and 
                        aliens attempting to gain illegal entry 
                        into the United States; and
                          (ii) not later than December 31, 
                        2008, complete construction of 
                        reinforced fencing along the miles 
                        identified under clause (i).
                  (C) Consultation.--
                          (i) In general.--In carrying out this 
                        section, the Secretary of Homeland 
                        Security shall consult with the 
                        Secretary of the Interior, the 
                        Secretary of Agriculture, States, local 
                        governments, Indian tribes, and 
                        property owners in the United States to 
                        minimize the impact on the environment, 
                        culture, commerce, and quality of life 
                        for the communities and residents 
                        located near the sites at which such 
                        fencing is to be constructed.
                          (ii) Savings provision.--Nothing in 
                        this subparagraph may be construed to--
                                  (I) create or negate any 
                                right of action for a State, 
                                local government, or other 
                                person or entity affected by 
                                this subsection; or
                                  (II) affect the eminent 
                                domain laws of the United 
                                States or of any State.
                  (D) Limitation on requirements.--
                Notwithstanding subparagraph (A), nothing in 
                this paragraph shall require the Secretary of 
                Homeland Security to install fencing, physical 
                barriers, roads, lighting, cameras, and sensors 
                in a particular location along an international 
                border of the United States, if the Secretary 
                determines that the use or placement of such 
                resources is not the most appropriate means to 
                achieve and maintain operational control over 
                the international border at such location.
          (2) Prompt acquisition of necessary easements.--The 
        Attorney General, acting under the authority conferred 
        in section 103(b) of the Immigration and Nationality 
        Act (as inserted by subsection (d)), shall promptly 
        acquire such easements as may be necessary to carry out 
        this subsection and shall commence construction of 
        fences immediately following such acquisition (or 
        conclusion of portions thereof).
          (3) Safety features.--The Attorney General, while 
        constructing the additional fencing under this 
        subsection, shall incorporate such safety features into 
        the design of the fence system as are necessary to 
        ensure the well-being of border patrol agents deployed 
        within or in near proximity to the system.
          (4) Authorization of appropriations.--There are 
        authorized to be appropriated such sums as may be 
        necessary to carry out this subsection. Amounts 
        appropriated under this paragraph are authorized to 
        remain available until expended.
  [(c) Waiver.--
          [(1) In general.--Notwithstanding any other provision 
        of law, the Secretary of Homeland Security shall have 
        the authority to waive all legal requirements such 
        Secretary, in such Secretary's sole discretion, 
        determines necessary to ensure expeditious construction 
        of the barriers and roads under this section. Any such 
        decision by the Secretary shall be effective upon being 
        published in the Federal Register.
          [(2) 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.]
  (d) [Omitted--Amends another Act.]

           *       *       *       *       *       *       *


                             MINORITY VIEWS

    In 2006, the House passed the Secure Fence Act (H.R. 6061). 
This landmark effort led by former Homeland Security Committee 
Chairman Peter King directed the construction of hundreds of 
miles of border barriers and passed the House with substantial 
bipartisan support.
    The Secure Fence Act's effectiveness and the effectiveness 
of nearly all border barrier construction hinges on the exact 
provision of law that H.R. 1232 would repeal.
    The waiver authority H.R. 1232 would repeal has been upheld 
in the courts, and as former Secretary Nielsen explained before 
the committee earlier this year, has only been used in cases 
where it was absolutely necessary.
    It is unfortunate that the majority has now rejected the 
long-standing bipartisan consensus in this committee that 
border barriers are a key part of border security.
    Instead, the majority has spent time building up strawman 
arguments about massive land grabs, trampled wildlife, and 
environmental catastrophes allegedly caused by construction of 
border barriers. There is no such crisis at the southwest 
border. There is, however, a humanitarian, national security, 
and illegal immigration crisis.
    Illegal border crossings are on track to reach 12-year 
highs and our broken immigration system is being exploited by 
smugglers and cartels who make billions of dollars off 
desperate migrants and lethal drugs.
    In Fiscal Year 2018, CBP seized 895,011 pounds of drugs at 
the border. That includes approximately 2,135 pounds of 
fentanyl. To put that in perspective, just two milligrams of 
fentanyl is a fatal dose to most people according to the DEA 
and 2,135 pounds of fentanyl represents a lethal dose for about 
484 million people.
    CBP seizes more pounds of drugs between ports of entry than 
at ports of entry. Since FY2012, CBP has seized more than 11 
million pounds of drugs between ports of entry, compared with 
about 4 million pounds at ports of entry.
    Border Patrol regularly conducts capability gap analyses of 
known and anticipated threats. In doing so, Border Patrol has 
determined the need for a functioning wall system to gain 
situational awareness and operational control along the 
southwest border.
    A wall system is a combination of various types of physical 
border barriers and infrastructure that includes wall or fence, 
all-weather patrol and access roads, lighting, enforcement 
cameras, sensors that incorporate anti-tunnel detection, and 
other 21st century technology.
    CBP data clearly shows that in areas where we have built a 
wall system, illegal traffic has plummeted. In San Diego, 
illegal traffic has dropped 92 percent. In El Paso, illegal 
traffic has dropped 95 percent. And in Tucson, illegal traffic 
has dropped 90 percent.
    It's unfortunate that the Majority refuses to listen to the 
agents and operators in the field about what it takes to secure 
the southwest border, and refuses to consider the national 
security impact of this legislation. H.R. 1232 would make our 
country less safe and less secure.
                                                       Mike Rogers.

                                  [all]