White House

Even if Congress says yes, Trump’s border wall faces these four big hurdles

Contractors have completed eight prototypes of President Donald Trump’s proposed border wall with Mexico, and the public got their first look at them in San Diego, Cal., on Oct. 26. Homeland Security workers are now subjecting the prototypes to testing, including use of sledgehammers and torches, to see if they can be breached.
Contractors have completed eight prototypes of President Donald Trump’s proposed border wall with Mexico, and the public got their first look at them in San Diego, Cal., on Oct. 26. Homeland Security workers are now subjecting the prototypes to testing, including use of sledgehammers and torches, to see if they can be breached. AP

This may be the year that President Donald Trump prods Congress to finance some of the U.S.-Mexico border wall he has long championed. Yet even if Trump secures billions for border security, construction of his “big, fat, beautiful wall” faces multiple obstacles.

From environmental lawsuits and design disputes to the very real resistance simmering among landowners who could lose their property, Trump faces one hurdle after another in fulfilling his signature campaign promise.

“Getting this thing funded” is just one problem, said Terence Garrett, a specialist in border security at the University of Texas-Rio Grande Valley. “There are just so many open questions about this project.”

Here are the four big challenges the Trump administration faces, even if Congress approves funding:

1. Landowner resistance

The federal government owns less than one-third of the land along the 2,000-mile border with Mexico. That means that, to build at least some of the wall, federal authorities will have to negotiate easements with thousands of property owners, or seize their land using eminent domain. Most of these properties are along the Rio Grande Valley in Texas, where land owners have resisted previous federal attempts to expand border fencing.

A decade ago, the government had to file more than 330 eminent domain lawsuits against South Texas landowners for a 211-mile border fencing project. About 90 of those cases are still pending, according to the U.S. Customs and Border Protection, a division of the Department of Homeland Security.

If the Trump administration were to condemn hundreds of additional properties for its border wall, litigation could drag out for three or four years, based on past experience detailed in a November report by Democrats on the Senate Homeland Security and Governmental Affairs Committee.

Trump is a longtime advocate of government seizure of private property, and in his 2018 budget request to Congress, the White House asked for $2 million to hire additional land acquisition lawyers in the Department of Justice. In July, the border patrol and Army Corps of Engineers gave notice that they would begin reviewing property records in Texas.

Yet in testimony to Congress, homeland security officials have been unable to say how many landowners could be affected by the wall, how much time will be required to secure needed land or how much it will cost. “It is too early to tell how many American citizen landowners may be affected by border barrier construction,” Homeland Security Secretary John Kelly told a Senate committee in July. Kelly has since become Trump’s chief of staff.

Polling suggests the border wall is deeply unpopular in South Texas, even among those wanting stronger border security in areas where trafficking of people and drugs is common.

“It all depends on where you live and where your property is located,” said Susan J. Kibbe, a rancher and executive director of the South Texans’ Property Rights Association. Landowners away from the border are more supportive of the wall than those who would be directly affected by its construction, she said.

Yet many landowners expect some kind of additional structure for the 1,250 miles of border with no fence or other obstruction, Kibbe said. “Everyone realizes the president ran on a platform of border security and a border wall,” she said.

2. Environmental litigation

Two sets of environmental groups and the state of California have filed lawsuits against the Trump administration’s use of federal waivers to avoid preparing environmental assessments for the border wall. Those lawsuits have been consolidated and are scheduled to be heard Feb. 9 in U.S. District Court in San Diego.

The outcome will be closely watched. The judge in the case is Gonzalo Curiel, whom Trump repeatedly berated on the campaign trail for his handling of lawsuits against Trump University.

Environmentalists could have trouble prevailing. Under a 2005 law, the REAL ID Act, the Homeland Security secretary was given authority to waive environmental laws and other statutes to build 670 miles of fencing along the U.S.-Mexico border.

That project quickly prompted lawsuits from environmental groups and members of Congress, who claimed that Homeland Security Secretary Michael Chertoff overstepped with his broad use of the waivers. But the U.S. Supreme Court declined to hear the case in 2008, a victory for Chertoff and a setback for wildlife advocates.

Plaintiffs in the current litigation say they are more hopeful this time. They argue that Congress granted environmental waivers in 2005 for a specific border fencing project, not the wall that Trump hopes to build from the Pacific Ocean to the Caribbean.

“What the Trump administration is proposing is entirely different and far more expansive than anything Congress has mandated,” said Brian Segee, a senior attorney for the Center for Biological Diversity, one of the groups involved in the litigation. He and others argue the wall would threaten a range of sensitive species, ranging from jaguars to migrating Sonoran pronghorn sheep.

Once Trump’s plans are more clear, other lawsuits could follow.

Three weeks ago, the National Butterfly Center in South Texas filed suit against the Department of Homeland Security after border wall contractors allegedly trespassed on its 100-acre sanctuary and used chainsaws to widen a road.

The butterfly center, owned by the North American Butterfly Association, claims in its lawsuit that construction of the border wall will cut off two-thirds of the sanctuary, “effectively destroying the Center and leaving behind a 70-acre no-man’s land between the proposed border wall and the Rio Grande.”

Other possible litigants could include Native American tribes along the border. These include the Tohono O’odham Nation in Arizona and the Kickapoo Tradition Tribe in South Texas.

3. Design disputes

This summer, the Department of Homeland Security selected six companies to build border wall prototypes. The companies completed their prototypes in late October in San Diego, near the border with Tijuana, and they have since been in the test and evaluation phase, said Carlos Diaz, a spokesman with U.S. Customs and Border Protection.

The testing is expected to finish later this month, after sledgehammers, torches, pickaxes and battery-operated tools are used on the prototypes. There is no current timeline for further steps, Diaz said, such as for selection of a contractor or preferred designs.

During a Dec. 20 cabinet meeting, Trump said he planned to visit San Diego “very shortly” to view the prototypes. His comment raised eyebrows, partly because it would involve Trump traveling to blue-state California, which he has not done since becoming president.

DHS has said it wants a structure 30 feet tall, sunk at least 6 feet into the ground (to prevent easy tunneling) and designed so it cannot easily be scaled.

The prototypes have already sparked controversy. Six of the eight are thick and solid, which would prevent border patrol agents from seeing through to possible activity on the other side.

In the past, border security experts such as David Aguilar, a former CBD deputy commissioner, have said that “see-through capability is critically important.” Trump himself said at one point he wanted a transparent wall, so that Americans on the U.S. side could be alerted to criminals throwing “large sacks of drugs” over the structure.

Garrett, the University of Texas-Rio Grande Valley political scientist, said border agents he knows prefer fencing as opposed to a solid wall. “They need to be able to see what is going on on the other side of the fence, for security reasons,” he said.

Solid walls and fences can also exacerbate flooding problems, acting like dams during big desert rain storms. In 2008, a 5.2-mile border fence intensified flooding along the southern border of the Organ Pipe Cactus National Monument in Arizona, according to a report that year by the national monument.

4. Cost

In his 2018 budget request, Trump asked Congress for a $1.6 billion “down payment” to construct 74 miles of border barrier. On Friday, the Wall Street Journal and other media reported the White House is now seeking $18 billion over many years for the wall and other border security measures.

A $1.6 billion appropriation could cover the fortification of only an extra 5 percent of the 1,250-mile unfenced portion of the border. Building the remainder will cost many more billions. How many? Trump said on the campaign trail it would cost merely $12 billion. The Department of Homeland Security has estimated nearly $22 billion. A Massachusetts Institute of Technology report estimated $38 billion. Senate Democrats peg the price at $70 billion.

Few experts expect federal authorities to fully wall off the border. But Trump may succeed in partial construction, along with other security enhancements along the border.

As his Homeland Security Secretary Kirstjen Nielsen said during her Senate confirmation hearing in November, “There is no need for a wall from sea to shining sea.”

Stuart Leavenworth: 202-383-6070, @sleavenworth