The incoming administration of Joe Biden puts a new focus on the multi-billion-dollar U.S.-Mexico border wall construction program, an early and high-profile Donald Trump spending priority.
The president-elect stated emphatically during campaign stops in Texas that “not another foot” of wall will be built under his administration and that federal lawsuits to seize Rio Grande border land—almost all privately owned—will be dismissed.
“We want that in concrete terms,” Ricardo de Anda, a Laredo, Texas attorney and anti-wall activist told ENR. There are 221 miles of barrier under construction, says U.S. Customs and Border Protection, a U.S. Dept. of Homeland Security unit.
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The Democratic National Committee is developing a resolution asking the new administration to immediately end President Trump’s border-security emergency declaration used to justify transfer of billions of dollars in Defense Dept. funding for wall construction, with numerous legal challenges still pending. The resolution also seeks a moratorium on wall construction and a halt to eminent domain proceedings.
A federal judge ruled Nov. 15 that acting Homeland Security Secretary Chad Wolf was not lawfully serving as secretary, which De Anda says negates his authority to justify wall building by declaring the Texas border a “high priority” security risk. “We made the claim months ago that Wolf did not have authority to issue a directive to build the wall here,” the attorney says.
About $10 billion in border wall construction contracts have been issued, but they can be terminated for convenience. Some wall critics worry that the stipulation was removed from border wall contracts, but the government has an “inherent right” to terminate for convenience whether or not it is expressly written in the contract, says the Congressional Research service.
Procurement experts such as law professor John Horan at Georgetown University, says the government generally has more leeway in contract termination than private construction owners.
In July, Homeland Security’s Inspector General said the border patrol agency did not complete required analysis of alternatives to identify the best solution for portions of the wall, which some observers say could give more weight to possible contract cancellations.
If and when contracts are terminated, federal regulations require contractors to be compensated fairly. The government “will have to pay for what’s been completed and for us to demobilize,” Marty Jorgensen, a unit president of wall contractor Barnard Construction, told ENR. The Montana contractor—which has been awarded more than $1 billion in border wall work, according to media reports based on federal documents—hopes to be made whole, he says.
Whether any of the 360 miles of bollard-style wall that has been built will be torn down is another question. Biden did not respond when asked if that would happen. “We want it torn down, but we are taking it one step at a time,” de Anda says.
A New Look at Immigration
On a related topic, immigration reform could also be back on the table under the new administration.
Mike Bellaman, CEO of the Associated Builders and Contractors, says he sees no appetite for comprehensive immigration reform, creating pathways to legal citizenship that could gain ground, particularly for those with DACA and Temporary Protected Status (TPS).
More than 100,000 construction workers are estimated to be covered under either DACA or TPS. Bellaman says many ABC member companies have expressed willingness to sponsor a pathway to citizenship for their TPS employees or those covered under long-term work visas.
“We’d welcome a productive conversation around making that happen,” he says.
Jim Young, a senior Associated General Contractors congressional relations director agrees, noting that addressing citizenship for those with DACA or TPS status is a “rare opportunity for bipartisanship. There is a lot of sympathy out there for DACA and TPS.”
