Immigration Reform by Executive Order: Build the Border Wall

How to Fix the Border: A Proposal for Immigration Executive Order #1, to Secure the US-Mexico Border

President Obama can flex his presidential power issuing Executive Orders regarding immigration. I propose the most urgent presidential mandate should be to build a border wall. As an immigration attorney based in California, I would benefit from the government ignoring the border and creating millions of new clients for my firm. But as an American, I want the Government to protect our soil and my family from threats coming across our southern border. Drug mules and Islamic State terrorists should not be able to waltz into the US. Therefore I have drafted a proposal, and an effectively free funding plan, for President Obama to build a border wall via Executive Action.

This article describes in detail what needs to be fixed, how to fix it, and how much it costs. Next I set out the legal basis for paying to fix the border through Executive Order, without affecting the deficit, raising taxes or interfering with other government programs. Too good to be true? No — at the end of this article is the actual Executive Order which will accomplish these goals. It just needs the President’s signature.

Preventing people from entering the US illegally is a matter of three functions: a physical barrier to prevent illegal entry, a Border Patrol to catch people who do manage to enter illegally, and an immigration court system that fairly and efficiently separates those who can stay from those who must leave. The Fence, the Feds, the Courts, and the Funding.

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The Fence

Let’s just agree to build a fence along the whole southern border. Period. It will certainly keep out border jumpers, and may even deter the druggies and ISIS.

How much will it cost? The border is about 2,000 long. About 700 miles is already fenced. That leaves 1,300 miles. The average cost of the most expensive type of border fencing (concrete or metal barrier) is $3.9 million per mile.  That means the cost to fence the entire remaining border would be about $5 billion. It should take about 3 years. The Great Wall of China was built in 500 BC and eventually stretched more than 5, 500 miles. Certainly, in 2014, we can put up a fence only 1/5th that length.

Fence Price Tag: $5 billion.

The Feds

Of course, even with a fence, people will still try to get in so we still need a Border Patrol. In 2013, there were about 21,000 Border Patrol agents at a total cost of about $3.5 billion. In 2013, along the southwest border, about 414,000 people were caught by Border Patrol agents trying to enter the US. This is very rough, but these numbers mean that it costs about $8,500 per apprehended person or $167,000 per Border Patrol agent. If we want to be able to catch an additional 100,000 people trying to cross the border, it may cost an additional $850 million. This works out to adding another 5,100 Border Patrol agents.

Much of the land along US-Mexico is federally owned, 20.7 million acres managed by the Bureau of Land Management (BLM) and U.S. Forest Service (USFS). This includes 4.3 million acres of “Wilderness areas” where activities such as the use of motorized vehicles and construction of roads and structures are prohibited. Border Patrol agents are unable to use motorized vehicles to patrol these areas or place electronic surveillance structures. As a result, federal lands along the border have become a highway for criminals, drug smugglers, human traffickers and potentially terrorists. This has led to destruction of the very fragile desert environments that the Forest Service and BLM are charged to protect. Clearly, improving border security will lessen these environmental impacts. If there is a conflict between protecting border security and certain environmental rules, securing the border, as a matter of national security, should prevail.

Border Patrol Price Tag: $850 million

The Immigration Court System

One attractant in the current crisis is the ridiculous length of time it takes for government to deport an illegal border crosser. On average if someone is caught today, it will take one year before the first hearing. If at that first hearing, the border crosser states he or she is afraid to go home due to persecution from drug dealers, gangs, terrorists, the military, etc., the case is reset for another year. If the prosecuting attorney does not have the file on court day, add another one year extension. If the border crosser does not have a defense attorney on court day, add a year.

Now, let’s say the stars align on court day and the judge decides the case. If the judge orders the border crosser to be sent home, the defense attorney can file an appeal. If the judge says the border crosser can stay in the US, the prosecuting attorney can file an appeal. Guess what: an appeal takes another 3-4 years. During all this time, if the border crosser states he or she is afraid to go home due to drug dealers, gangs, terrorists, the military, etc., he or she gets a work permit and continues to live and work in the US. If the case goes through appeal, we are talking about 5-7 years before a final order to leave or stay.

Why does it take so long? Not enough judges, not enough prosecutors, not enough defense attorneys, and not enough appellate judges. Sufficient numbers of all these participants are needed to smooth (and speed) the wheels of justice. If judges are lacking, cases take years to be calendared. If prosecutors are lacking, cases are delayed due to inadequate file preparation. If defense attorneys are lacking, constitutional protections are missed and cases get caught up in appeals. And why an appeal takes 3-4 years is simply the lack of appellate judges. The Board of Immigration Appeals receives about 30,000 new appeals each year, perhaps the largest number of appeals received by any government appeal unit.[1] Currently 400,000 appeals are pending before theBoard of Immigration Appeals.[2]Oh, did I also mention that 50% of all Immigration Judges are eligible to take retirement in 2015?[3]

About 640,000 people were caught entering the US illegally in 2012. In addition to nearly 400,000 arrested near the US-Mexico border (by the Border Patrol), another 240,000 were arrested away from the border (by another law enforcement agency called ICE – Immigration and Customs Enforcement)[4] About 230,000 were simply put on a bus and returned to Mexico the same day.[5] About 400,000 people were deported through a court hearing, more than 1,000 per day.[6] An additional 330,000 cases remain pending before Immigration Judges.[7]

How much would it cost to speed up the deportation process? There are three pieces to this puzzle: court costs, prosecutor costs, and defense costs.

Court Costs. The current cost of funding the immigration courtrooms and the Board of Immigration Appeals (judges, attorneys, interpreters, clerks, etc.) is about $310 million for 260 immigration judges[8], or about $1.2 million per judge.  No – immigration judges are not paid $1 million per year. Immigration judges are paid about $160,000 per year.[9]  The rest goes to everything else that makes a courthouse function. This works out to about just $775.00 per person deported. Actually a good deal, when you consider it costs $8,500 to apprehend someone. But we need to triple this budget to get eliminate the backlog and get cases completed within 90 days of arrest. Let’s triple the courtroom budget to $1 billion per year.

Prosecutor Costs. The government employs 900 attorneys who prosecute deportation and related cases in immigration courts.[10] The budget is $215 million, about $238,000 per attorney, or $537 per person deported. But we need to triple this budget to get eliminate the backlog and get cases completed within 90 days of arrest. Let’s triple the prosecutor budget to $650 million per year.

Defense Costs. We all know that if you don’t pay your taxes, the IRS can seize your property. But the IRS can’t put you in jail. Tax collection is a civil matter, not criminal so there is no right to a government-paid defense attorney during an IRS examination. That’s because the most you can lose to the IRS is you property, not your liberty.

But let’s imagine Congress passes a law that says if you don’t pay your taxes the IRS can take away your liberty, separate you from your family, your home and livelihood and send you out of the US for the rest of your life.

Would you still be ok with the notion that is a merely a civil matter so you don’t have the right to a government-paid attorney? No. If the IRS ruled against you and ordered you deported, would you file an appeal or just take your lumps and leave? You would file an appeal. I believe every US citizen would use every means available to try to stay. And if you are a US citizen and with little money, should the government appoint an attorney to help you to stay? Of course.

If you are not a US citizen, the federal government may deport you without any government-appointed attorney to represent you. Shoplifters get government appointed attorneys; why not provide a government-appointed attorney for someone who is begin deported, especially if she has lived in the US nearly all her life?

The vast majority of people who are in court without an attorney do so because they cannot afford one. It has been estimated that the ratio of poor people to free legal aid attorneys is 10,000 to 1.[11] Unrepresented parties slow down the wheels of justice since they do not understand legal language, legal procedures, serving the other parties, preparing evidence, preparing briefs, the dire consequences of missing deadlines, etc.[12]Fully 92% of Immigration Judges agree that when the respondent (the person the government is trying to deport) has a competent attorney, the case can be handled much more efficiently and quickly.[13]

The law says that a respondent in immigration proceedings has a right to legal counsel “at no cost to the government.”[14] But when a respondent cannot afford an attorney and goes unrepresented, it can hardly be called “at no cost to the government.” Unrepresented respondents in deportation proceedings  cost the US government a lot of money.

Not only the court costs and prosecutor costs, but detention (imprisonment) costs too. The average case in immigration court takes 562 days to complete.[15]  About 28% of the 400,000 respondents in immigration proceedings are detained (imprisoned) during the trial.[16] The cost per day for immigration detention (imprisonment) is $159.[17] This is why the annual detention (imprisonment) cost of respondents in immigration proceedings is nearly $2 billion per year.[18] Of course this won’t go to zero if everyone has a government appointed attorney, but it will certainly be reduced. A recent study by an economist formerly with the Board of Governors of the Federal Reserve System shows that providing a government-appointed attorney to poor respondents in immigration proceedings will actually cost the government nothing, due to savings in detention costs.[19]

Immigration Court System Price Tag: $1.6 billion

BOTTOM LINE

Congress has passed numerous laws that direct the Executive to strengthen the borders, such as the Secure Fence Act of 2006 (PL 109-367),[20] to detain and remove persons unlawfully present, including the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (PL 104-208);[21] yet Congress has never fully funded these laws: the border fence is unbuilt, detainment costs skyrocket, and immigration cases take years to resolve. We need to fully fund these laws so they can actually work.

Total Price Tag: $7.45 billion

How Do We Pay to Fix the Border by Executive Order?

Now that we know the cost to fix the border, how do we pay for it?

The defects in our current fence, Border Patrol, and Immigration Court system, all work together to undermine America’s national security. As Gov. Rick Perry said “There can be no homeland security without border security, and there can be no higher priority than protecting our citizens.”[22] And Sen Ted Cruz said “Most Americans agree that, in the post 9/11 world, it doesn’t make any sense to not know who’s coming into this country.”[23] Yet Marine Corps Gen. John Kelly, commander of U.S. Southern Command, has asked Congress this year for more money, drones and ships for his mission of protecting the US southern border – a request unlikely to be met.[24]

‘Securing the perimeter’ is perhaps the most fundamental objective our nation’s military.[25] Yet the military is best suited to prevent the incursion by another nation’s military. It is not a law enforcement agency, which seeks to prevent crime and arrest criminals for prosecution. Military officers soldiers are not trained in probable cause and the immigration laws. They are trained to use deadly force to stop an enemy.

The solution: protecting the border should be a program of the Department of Defense. However the program should be operated by the Department of Homeland Security and Department of Justice. It is not necessary to re-train our military on probable cause and the immigration laws. The skilled employees of the Department of Homeland Security and Department of Justice already know these things. We simply need the Department of Defense to pay for it.

Would this interfere with other program of the Department of Defense? Hardly. The current budget of the Department of Defense is $495 billion. The estimated price tag to secure the border is $7.45 billion, is about 1.5% of the total Department of Defense budget. When each existing program of the Department of Defense reduces its expenditures by 1.5%, the impact on the other programs of the Department of Defense will be imperceptible.

Legal Basis for the Executive Order to Secure the US-Mexico Border

Underthe United States Constitution, Article II, Section 1, as Commander in Chief, the President is empowered and obligated to allocate funding authorized and appropriated to the Department of Defense to address any threat to the national security of the United States. Since 1962,[26] Congress has authorized the President to designate any program that protects the national security of the United States as a program of the Department of Defense. This law was the basis for previous Executive Orders, issued by several Presidents, including President Carter (1978)[27] President Reagan (1987)[28] and President Bush (1992).[29]

Since 1952, Congress has authorized the President,[30]  by Presidential Proclamation, to suspend the entry and alter the terms of entry for any non-US citizen, or entire class of people, for any period of time.   This law was the basis for Proclamations and Executive Orders issued by President Reagan (1981),[31](1985),[32] and (1986)[33] and President Bush (1988).[34]

Also since 1952, Congress has authorized the President,[35]  by Executive Order, to legalize any violation of the immigration laws relating to entry, departure, and fraudulent documents. This law was the basis for Executive Orders issued by President Carter (1979)[36] and President Reagan (1981).[37]

In 1951, Congress granted the President[38] authority to delegate to any cabinet secretary or presidential appointee the authority to carry out any function vested in the President by law. This law was the basis for Executive Orders issued by President Nixon (1970),[39] President Ford (1975),[40] President Carter (1979)[41] (1980).[42]

Congress has also authorized the President to exempt the application of certain environmental laws[43] when required by national security, for example, the Clean Air Act,[44] the Clean Water Act,[45] Noise Control Act,[46] Solid Waste Disposal Act,[47] and Safe Drinking Water Act,[48] the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).[49]  The Endangered Species Act provides that it may apply to certain activities if the Secretary of Defense finds it necessary for national security.[50]

How the Executive Order Works

Under this proposed Executive Order to Secure the US-Mexico Border, the President makes a Presidential Finding that the national security of the United States is threatened by a shortfall in funding to construct a physical barrier along the US-Mexico border and the laws under which Congress has ordered the President to strengthen border security and detain and remove persons unlawfully present in the United States. This shortfall is called the “Border Security Shortfall.” Any activity undertaken to remedy the Border Security Shortfall shall be known as “Border Security Shortfall Activity.”

Next, the President orders the current and annual calculation of the Border Security Shortfall, and that any Border Security Shortfall Activity is deemed an activity of the Department of Defense under 10 USC §111(b)(10), and that the cost of any such Border Security Shortfall Activity be paid from funds authorized and appropriated by Congress to the Department of Defense.

The Executive Order follows:

 

Executive Order to Secure the US-Mexico Border

 I, BARACK OBAMA, by the authority vested in me as President by the United States Constitution, including Article II, Sections 1 & 2, and laws of the United States, including sections 212(f) and 215(a) of the Immigration and Nationality Act of 1952, as amended (8 U.S.C. §1182(f) and 8 U.S.C. §1185), 3 USC §301, 10 USC §111, 10 U.S.C. §2802, the Clean Air Act (42 U.S.C. §7418(b)), the Clean Water Act (33 U.S.C. §1323(a)), the Noise Control Act (42 U.S.C.  §4903), the Solid Waste Disposal Act (42 U.S.C. §6961(a)), the Safe Drinking Water Act (42 U.S.C. §300(j)(6), and CERCLA (42 U.S.C. §9620(j)) and the Endangered Species Act (16 U.S.C. §1536(j)), hereby proclaim and order as follows.

Section 1-101 Border Security Improvements

(a) Findings.

1) I hereby find that the national security of the United States is threatened by the lack of a secure physical barrier along the US-Mexico Border and that it is in the national interest to construction such a barrier.

2) I hereby find that the national security of the United States is threatened by a shortfall in funding to construct a barrier along the US-Mexico border and the funding of laws ordering the Executive to strengthen border security and detain and remove persons unlawfully present in the United States. This shortfall shall be called the “Border Security Shortfall.” Any activity undertaken to remedy the Border Security Shortfall shall be known as “Border Security Shortfall Activity.”

3) I hereby find that all Border Security Shortfall Activities are in the paramount interest of the United States and therefore suspend the application of the following laws from these activities: the Clean Air Act, the Clean Water Act, Noise Control Act, Solid Waste Disposal Act, and Safe Drinking Water Act, and CERCLA.  I hereby find that exemption from the provisions of the Endangered Species Act is necessary, for reasons of national security, to carry out out these Border Security Shortfall Activities.

(b) Authority. Underthe United States Constitution, Article II, Section 1, as Commander in Chief, the President is empowered and obligated to allocate funding authorized and appropriated to the Department of Defense to address any threat to the national security of the United States. Under 10 USC §111(b)(10), the President is authorized to designate any national security activity under the Department of Defense.

(c) Summary. Section 1 of this Executive Order directs that the shortfall infunding to strengthen border security and detain and remove persons unlawfully present in the United States be paid from funds authorized and appropriated by Congress to the Department of Defense.

(d) Order.  I hereby order the current and annual calculation of the Border Security Shortfall, that any Border Security Shortfall Activity is hereby deemed an activity of the Department of Defense under 10 USC §111(b)(10), and that the cost of any such Border Security Shortfall Activity be paid from funds authorized and appropriated by Congress to the Department of Defense.   I hereby order the Secretary of Homeland Security and Secretary of Defense to implement changes in the government’s interpretation of the Immigration and Nationality Act (“INA”)  and 10 USC §111(b), consistent with Section 1 of this Executive Order. The Secretary of Defense shall ensure that sufficient resources and personnel are allocated to carry out these functions.

(e) Delegation of Authority. The Secretary of Homeland Security and Secretary of Defense are hereby designated and empowered to exercise in respect of the subject matter of Section 1 of this Executive Order the authority conferred upon the President by §215(a)(1) of the INA and 10 USC §111(b), respectively.

(f) Notice.  The 60 day advance Notice to Congress of the Border Security Shortfall Activity is hereby provided per 10 USC §111(c).

Section 1-102

(a) TheAttorney General and the Secretary of Homeland Security are directed to publish a joint Notice in the Federal Register detailing the Border Security Shortfall, including the law(s) passed by Congress and the annual budget to fully fund any Border Security Shortfall Activity required by such laws.

(b) The Notice described in Section 102(a) of this Executive Order shall be published within 60 days of the effective date of this Executive Order, and within 60 days after the start of any federal fiscal year thereafter.

Section 1-103.

The Secretary of Defense is directed to publish a Notice in the Federal Register detailing the accounts of the Department of Defense which will be reduced by any Border Security Shortfall Activity, within 60 days of publication of Notice under Section 1-102 of this Order.

Section 1-104.

The Attorney General and the Secretary of Homeland Security are directed to reasonably spend all funds allocated to all Border Security Shortfall Activities from the budget of the Department of Defense, within 30 days of publication of Notice under Section 1-103 of this Order.

______________________________

Barack H. Obama

President of the United States of America

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