The legislation includes a secion on a "Southern Border Fencing Strategy," which is intended to direct the Department of Homeland Security to direct a strategy on the border fence with Mexico. But the immigration bill gives an extraordinary amount of discretion to the Homeland Security Secretary in its implementation. In a hearing this week, Secretary Napolitano told the Senate Judiciary Committee that the legislation doesn't actually obligate any more border fencing.
Senator Mike Lee pointed out that "some have suggested that there are as many as 400 instances of discretion" granted to the Secretary of Homeland Security in the immigration bill. In the case of border fencing, Senator Lee had the following exchange with Secretary Napolitano,
Sen. Lee: "Do you agree that the discretion that's been granted to you under this bill, should it be enacted into law, could permit you to make a finding that [fencing is] complete - it's substantially complete - without any additional fencing?"
Secretary Napolitano: "Well right now, the border patrol, alread pursuant to existing law - an appropriations law - has done an extensive study of where fencing makes sense along the southwest border. They determined that there are 653 miles where it actually makes sense - and Senator Cornyn mentioned that there are vast stretches of the border where it doesn't make a lot of sense - and 652 miles of that have been completed.
In other words, President Obama's Department of Homeland Security doesn't believe that the immigration bill as currently written requires any more border fencing to be completed. This legislation requires no additional border fencing, according to the discretion granted to the Department of Homeland Security.
To be fair to Secretary Napolitano, she did say that the bill would give her the opportunity to go re-examine the fences that are already built. "Should the bill pass," Napolitano said, "[we'd] go back and look at the kind of fencing we have. Do we want to make it triple what it is, or taller than it is, or something of that sort."
President Obama has for years been proclaiming that border fencing is "basically complete," so this isn't a change from what the Obama Administration has always said. The discretion being granted to the Department of Homeland Security, in this case, allows that no additional fencing is required.
Politifact went back and looked at the Secure Fence Act of 2006 and its border fencing requirements. The picture that they paint is one of an incomplete border fence - and one that has changed significantly over the years.
DHS reports there are currently 36.3 miles of double-layered fencing, the kind with enough gap that you can drive a vehicle between the layers. But the majority of the fencing erected has been vehicle barriers, which are designed to stop vehicles rather than people (see here), and single-layer pedestrian fencing (see here). The design specifications vary depending on geography and climate characteristics, but according to the Customs and Border Patrol website, it includes "post on rail" steel set in concrete; steel picket-style fence set in concrete; vehicle bollards similar to those found around federal buildings; "Normandy" vehicle fence consisting of steel beams; and concrete jersey walls with steel mesh.
The original act specifically called for double-layer fencing, and only 36.3 miles of double-layered fencing currently exist. However, the act was later amended to allow Border Security the discretion to determine which type of fencing was appropriate for different areas.
Indeed, Politifact also points to a report from the Government Accountability Office that says that the fencing is still prone to "cross-border illegal activity, including the smuggling of humans and illegal narcotics."
If the Gang of Eight were serious about improving border fence security, they wouldn't leave such immene discretion to the Department of Homeland Security. As the Secure Fence Act of 2006's amendment proves, leaving this up to discretion allows DHS to skirt requirements for secure borders and erect less than 5% of what a "secure" fence would need. Janet Napolitano said that DHS would interpret the law as written to require no additional fencing. That's information that conservatives need to know when weighing the pros and cons of this legislation.
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