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In a new report published mid-December, the research arm of the Congress raised doubts about plans to build a fence along the border with Mexico. Last year, lawmakers gave preliminary approval for just such a border, which could end up being as long as 850 miles.

For one thing, the Congressional Research Service said the fence could cost as much as $70 million dollars per mile — or nearly 10 times the original estimates. For another, the agency was agnostic about whether the fence would be effective:

[T]here is also strong indication that the fencing, combined with added enforcement, has re-routed illegal immigrants to other less fortified areas of the border. Additionally, in the limited areas where fencing has been erected there have been numerous breaches of the border fencing and a number of tunnels discovered crossing underneath the fencing. It stands to reason that even if border fencing is constructed over a significant portion of the land border, the incidences of fence breaches and underground tunnels would increase.

In analyzing a 14-mile border barrier built in San Diego in the early 1990s, CRS argues that the fence itself had little effect on the flow of illegal immigrants; increased patrolling, it concludes, made the difference. These nifty charts were included in the report.

On the San Diego fence:

While the San Diego fence, combined with an increase in agents and other resources in the [United States Border Patrol’s] San Diego sector, has proven effective in reducing the number of apprehensions made in that sector, there is considerable evidence that the flow of illegal immigration has adapted to this enforcement posture and has shifted to the more remote areas of the Arizona desert. Nationally, the USBP made 1.2 million apprehensions in 1992 and again in 2004, suggesting that the increased enforcement in San Diego sector has had little impact on overall apprehensions. …

The primary fence, by itself, did not have a discernible impact on the influx of unauthorized aliens coming across the border in San Diego.

In addition, CRS said a provision tucked inside the 2005 Real ID Act could have significant implications on how any future fence is built. Largely in response to delays caused by environmental review of the original San Diego barrier, the law allows the Department of Homeland Security to waive all “legal requirements” in moving forward with construction:

Many are concerned with the apparent breadth of the waiver provision and limited judicial review. As passed into law, the REAL ID Act waiver provision begins with the arguably ambiguous “notwithstanding any other law” phrase and allows the waiver of all “legal requirements.” Although the term “legal requirement” is not defined, it cannot grant the Secretary the authority to unilaterally waive a person’s constitutional rights. The provision, however, has been construed by [Michael Chertoff Secretary of Homeland Security] to permit him to waive laws in their entirety. Congress commonly waives preexisting laws, but the new waiver provision used language and a combination of terms not typically seen in law. Most waiver provisions have qualifying language that (1) exempt an action from other requirements contained in the act that authorizes the action, (2) specifically delineate the laws to be waived, or (3) waive a grouping of similar laws.

In this dispatch from Washington, the Inland Valley Daily Bulletin says the CRS paper could prove to be convenient ammunition for the incoming Democratic Congress.

VLADIMIR KOGAN

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