President-elect Joe Biden pledged to end construction of his predecessor’s signature border wall, but halting the ongoing, multibillion-dollar project will be an arduous, complex and potentially costly process.
His administration will be saddled with lawsuits over wall funding, face questions about maintenance of the barriers built over the last four years and have to contend with private land that had been siphoned for future construction. Around 415 miles of wall construction have been completed, roughly 353 of which is replacing old, dilapidated walls or barriers, as of November 27, according to US Customs and Border Protection. The administration is quickly pressing forward with its stated goal to build 450 miles by the end of this year, with contractors working around the clock.
Biden’s promise to halt construction has already prompted discussions among Customs and Border Protection officials about what would occur in that event, particularly if funding is cut, according to a Homeland Security official.
The border wall will stand to be one of President Donald Trump’s lasting legacies. The President took unprecedented measures to construct additional barriers on the southwest border, declaring a national emergency to take money from the Defense Department to pay for the wall, defying Congress. His administration also waived numerous environmental and contracting laws to speed up construction, as well as filed dozens of lawsuits in rapid succession to seize private land on the border.
“President-elect Biden will end Trump’s so-called ‘national emergency’ and stop stealing money from our military and end the lawsuits to seize land from Americans living on the border,” a transition spokesperson said.
Biden maintained in August that “there will not be another foot of wall constructed on my administration.”
In the waning days of the Trump presidency, the administration has rushed to usher forward new immigration rules sitting in the pipeline and continue to double down on agenda items, including the construction of the wall.
Customs and Border Protection and the Biden team have begun transition talks, though there have not been discussions between the two on the wall yet, CNN has learned. The US Army Corps of Engineers, which provides direction and oversight of border projects, and Army officials are expected to meet with the transition next week, a US official told CNN.
Biden’s hope to end wall construction may not come cheap
There are costs incurred before construction starts, such as planning costs, land acquisitions and manufacturing expenses and pre-positioning equipment. If contracts are terminated, there may also be the need to pay costs associated with clean up, demobilization and potentially restoration of land for safety and environmental reasons.
The government has a long standing authority to terminate contracts, but doing so comes at a cost, according to contracting experts. “The contractors will expect favorable settlements. The last thing the government wants is to have a long, dragged out, difficult negotiation with a contractor who says they’re blameless,” said Charles Tiefer, a government contracting law professor at the University of Baltimore.
Of the 46 total border barrier infrastructure projects that the Army Corps is executing construction for using both Pentagon and DHS funds, 37 projects are ongoing, 8 projects are completed, and 1 project is suspended pending resolution of a protest, said Raini W. Brunson, a spokesperson for the US Army Corps of Engineers.
“As a rule, the termination clause permits the government to exercise its right to terminate the contract for its convenience. However, if terminated for convenience, the contractor is entitled to submit a request for termination settlement costs,” Brunson said.
The ability to terminate for “convenience” is broad, and the government has a lot of discretion, said Kara Sacilotto, a partner in the government contracts practice at the firm Wiley Rein. Tiefer echoed that, adding that the government also has the option to partially terminate a contract, meaning part of a project could continue, while another part is halted.
The costs will ultimately depend on the size of the contract and how much of the project has been completed so far.
Democratic Rep. Henry Cuellar of Texas argued that in the long run the cost will pale in comparison to the “billions of dollars that will be wasted on a 14th century solution,” arguing that the funds instead be used for technology and personnel.
Cuellar told CNN he plans to send a letter to Biden, along with other lawmakers, urging his team to immediately prioritize ending the national emergency declaration, dismissing land seizure lawsuits, terminating wall contracts, and rescinding environmental waivers.
Questions about what happens to acquired real estate and who handles maintenance given some barriers were built with DHS money and others were funded by the Defense Department also remain, according to the US official. The focus now, though, is on getting to the administration’s goal of 450 miles by year’s end, the official added.
“CBP continues with the construction of new border wall system with funding that has been received through Fiscal Year (FY) 2020,” a spokesperson for the agency told CNN in a statement, arguing that border barriers have “proved to be a critical component in gaining operational control of the border and allowing for greater efficiency of manpower.”
The President-elect, who previously supported border barriers, has vowed to invest in technology and infrastructure to secure the border, placing an emphasis on tech, which has drawn more support from Democrats than brick and mortar barriers.
His current platform advocates for ending Trump’s national emergency declaration and directing federal resources to “smart border enforcement efforts.” But Biden will still have to grapple with the ways in which the current administration has moved to build barriers, including the different funding streams that have fueled lawsuits nationwide from states, environmental groups and border communities.
The Supreme Court said in October it would take up a border wall case concerning the Trump administration’s attempts to transfer Pentagon funds to build additional barriers along the US-Mexico border. At the core of the lawsuits is the accusation that the Trump administration circumvented Congress to obtain money for the wall.
A CBP official told CNN that the agency anticipates that sections of wall which are already under construction will be completed. “It doesn’t make sense to undo” projects that are underway, the official said. “What’s in the process will stay the course, and then they will start to phase out anything beyond that going forward,” the official said, predicting how the new administration will handle the wall.
There will be “different scenarios” based on status on construction in particular regions of the border, but there is “obviously not an appetite” in the new administration to continue the push for the border wall, the official added.
Brandon Judd, president of the National Border Patrol Council, which endorsed Trump, said it “would be a huge mistake” for the Biden administration to cease construction midway.
“If he (Biden) wants border security, then he should continue finishing the wall in the locations where the Trump administration has been building,” he said, advocating for construction to continue in “strategic locations” that he says will help agents secure the border.
How quickly the incoming administration acts is imperative, argued Ricky Garza, a staff attorney at the Texas Civil Rights Project, a legal advocacy group, which is currently representing landowners land seizure cases. “What we saw, unfortunately, was almost all, if not all, the fence started under Bush kept going under Obama,” he said, referring to legislation signed under President George W. Bush that authorized 700 miles of double-layered fence on the border.
Since Trump took office, there have been over 160 lawsuits filed against landowners to seize property to construct the border wall, according to Garza. The vast majority of all lawsuits filed under the Trump years were filed this year.
“The clients are extremely anxious right now,” Garza said, referring to landowners whose property is at risk of being taken. “I think it’s hard because we understand the wider reality that all of this could go away but at the same time in every individual case, there’s not any recognition in the court filings from the government that things could change. This is a priority.”
Even if Biden halts construction, there are more than 400 miles of 18 to 30 foot high bollard barrier along the southwest border to maintain.
“The real expense, even after the construction of the wall, is on maintenance,” said Gil Kerlikowske, former CBP commissioner who served in the Obama administration with Biden’s pick for Homeland Security secretary, Alejandro Mayorkas. “It is a huge expense,” he said, adding that during his time the agency spent millions of dollars to repair barriers if there was, for instance, a flood or smugglers burrowing through.
“This is the long term ongoing cost of maintenance that this administration has really failed to mention to the taxpaying public,” Kerlikowske said of the Trump administration.