What This Bill Does
This bill tells the Secretary of Homeland Security to restart border barrier construction projects that were underway before January 20, 2021. It removes certain legal obstacles that prevent building barriers, tactical infrastructure (like roads and checkpoints), and surveillance technology along the U.S.-Mexico border. The bill also makes previously appropriated funds available for these construction projects.
##
Who It Affects
- The Secretary of Homeland Security
- The Department of Homeland Security
- U.S. Customs and Border Protection
- Federal agencies involved in border construction
- State, local, and Tribal governments with border barrier agreements
- Private citizens with border barrier agreements
- The labor organization representing U.S. Border Patrol agents
##
Key Provisions
- The Secretary must resume all border barrier, tactical infrastructure, and technology projects that were underway or being planned before January 20, 2021, within one day of this act becoming law (Sec. 2(b)(1))
- The Secretary cannot cancel any contracts for border barrier construction that were signed on or before January 20, 2021 (Sec. 2(b)(2))
- All funds appropriated for border barrier construction during fiscal years 2018, 2019, 2020, and 2021 remain available to spend until fully used (Sec. 2(d))
- The Secretary of Homeland Security gains authority to waive legal requirements needed to expedite the design, testing, construction, installation, deployment, and operation of physical barriers, tactical infrastructure, and technology (Sec. 4(h)(1))
- Border barrier projects are exempted from compliance with 47 specific federal environmental, planning, and procurement laws and regulations (Sec. 4(h)(4))
- Courts can only review Secretary decisions for violations of the U.S. Constitution, and lawsuits must be filed within 60 days (Sec. 4(h)(3))
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What Changes
If this becomes law, the government will restart border construction projects that stopped after January 20, 2021. The Secretary of Homeland Security gains power to waive dozens of environmental and administrative laws to speed up construction. Previously signed contracts cannot be canceled. Old appropriations from 2018-2021 become available again to spend. The Secretary must honor all written agreements made before January 20, 2021, with states, local governments, tribes, private citizens, and other stakeholders regarding border barrier construction.
##
Important Definitions
The bill defines:
- **Physical barriers**: reinforced fencing, the border barrier system, and levee walls
- **Tactical infrastructure**: boat ramps, access gates, checkpoints, lighting, and roads
- **Technology**: border surveillance and detection equipment including tower-based surveillance, unmanned aircraft systems, Vehicle and Dismount Exploitation Radars (VADER), acoustic detection systems, advanced unattended surveillance sensors, mobile surveillance, and other detection and communication equipment
- **High traffic areas**: areas along the U.S. border under U.S. Customs and Border Protection responsibility with significant unlawful cross-border activity as determined by the Secretary
- **Operational control**: Not specified in bill text
- **Situational awareness**: Not specified in bill text
- **Advanced unattended surveillance sensors**: sensors with onboard computers that analyze detections to distinguish between vehicles, humans, and animals, filtering out false signals before transmitting data
- **Unmanned aircraft system**: Not specified in bill text
##
Effective Date
The Secretary must resume border construction projects not later than one day after enactment of this act (Sec. 2(b)(1)). The Secretary must notify Congress within seven days of using waiver authority (Sec. 4(h)(2)). All other provisions take effect upon enactment.
II
118TH CONGRESS
1ST SESSION
S. 422
To remove legal impediments preventing construction of a border barrier
along the international border between the United States and Mexico,
improve the construction requirements for such barrier, make previously
appropriated funds available for constructing such barrier until expended,
and for other purposes.
IN THE SENATE OF THE UNITED STATES
FEBRUARY 14, 2023
Mr. BUDD (for himself, Mr. TILLIS, Mr. RISCH, Mr. CRAPO, Mr. CRUZ, Mr.
DAINES, Mr. ROUNDS, and Mrs. BLACKBURN) introduced the following
bill; which was read twice and referred to the Committee on Homeland
Security and Governmental Affairs
A BILL
To remove legal impediments preventing construction of a
border barrier along the international border between
the United States and Mexico, improve the construction
requirements for such barrier, make previously appro-
priated funds available for constructing such barrier until
expended, and for other purposes.
Be it enacted by the Senate and House of Representa-
1
tives of the United States of America in Congress assembled,
2
SECTION 1. SHORT TITLE.
3
This Act may be cited as the ‘‘Build the Wall Now
4
Act’’.
5
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•S 422 IS
SEC. 2. RESUME CONSTRUCTION OF BARRIERS AND ROADS
1
ALONG UNITED STATES AND MEXICO BOR-
2
DER.
3
(a) DEFINITIONS.—In this section:
4
(1) DEPARTMENT.—The term ‘‘Department’’
5
means the Department of Homeland Security.
6
(2) PHYSICAL BARRIERS.—The term ‘‘physical
7
barriers’’ has the meaning given such term in sec-
8
tion 102(e) of the Illegal Immigration Reform and
9
Immigrant Responsibility Act of 1996, as added by
10
section 3(5) of this Act.
11
(3) SECRETARY.—The term ‘‘Secretary’’ means
12
the Secretary of Homeland Security.
13
(4)
TACTICAL
INFRASTRUCTURE;
TECH-
14
NOLOGY.—The terms ‘‘tactical infrastructure’’ and
15
‘‘technology’’ have the meanings given such terms in
16
section 102(e) of the Illegal Immigration Reform
17
and Immigrant Responsibility Act of 1996, as added
18
by section 3(5) of this Act.
19
(b) IN GENERAL.—
20
(1) IMMEDIATE RESUMPTION OF BORDER BAR-
21
RIER CONSTRUCTION.—Not later than 1 day after
22
the date of the enactment of this Act, the Secretary
23
shall resume all projects relating to the construction
24
of physical barriers, tactical infrastructure, and
25
technology along the international border between
26
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•S 422 IS
the United States and Mexico that were underway,
1
or being planned for, prior to January 20, 2021.
2
(2) NO CANCELLATIONS.—The Secretary may
3
not cancel any contract for activities related to the
4
construction of the border barrier system that was
5
entered into on or before January 20, 2021.
6
(3) USE OF FUNDS.—To carry out this section,
7
the Secretary shall expend all funds that were ap-
8
propriated or explicitly obligated for the construction
9
of the border barrier system on or after October 1,
10
2016.
11
(c) UPHOLD NEGOTIATED AGREEMENTS.—The Sec-
12
retary shall ensure that all agreements entered into before
13
January 20, 2021, that were executed in writing between
14
the Department and any State, local, or Tribal govern-
15
ment, private citizen, or other stakeholder are honored by
16
the Department relating to current and future construc-
17
tion of the border barrier system in accordance with such
18
agreements.
19
(d) AVAILABILITY OF FUNDS.—Notwithstanding any
20
other provision of law, any amount appropriated or other-
21
wise made available during fiscal year 2018, 2019, 2020,
22
or 2021 for any project relating to the construction of
23
physical barriers, tactical infrastructure, and technology
24
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•S 422 IS
along the southern border shall remain available until ex-
1
pended.
2
(e) USE OF FUNDS.—Any amounts appropriated or
3
otherwise made available for fiscal year 2021 that remain
4
available pursuant to subsection (d) may only be used for
5
barriers, technology, or roads that—
6
(1) use—
7
(A) operationally effective designs deployed
8
as of the date of enactment of the Consolidated
9
Appropriations Act, 2017 (Public Law 115–31),
10
such as currently deployed steel bollard designs,
11
that prioritize agent safety; or
12
(B) operationally effective adaptations of
13
such designs that help mitigate community or
14
environmental impacts of barrier system con-
15
struction, including adaptations based on con-
16
sultation with jurisdictions within which barrier
17
system will be constructed; and
18
(2) are constructed in the highest priority loca-
19
tions as identified in the Border Security Improve-
20
ment Plan.
21
SEC. 3. IMPROVING THE REQUIREMENTS FOR BARRIERS
22
ALONG THE SOUTHERN BORDER.
23
(a) IN GENERAL.—Section 102 of the Illegal Immi-
24
gration Reform and Immigrant Responsibility Act of 1996
25
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•S 422 IS
(division C of Public Law 104–208; 8 U.S.C. 1103 note)
1
is amended—
2
(1) in subsection (a), by striking ‘‘to install’’
3
and all that follows and inserting ‘‘(including the re-
4
moval of obstacles to detection of illegal entrants) to
5
design, test, construct, install, deploy, integrate, and
6
operate physical barriers, tactical infrastructure, and
7
technology in the vicinity of the United States bor-
8
der to achieve situational awareness and operational
9
control of the border and deter, impede, and detect
10
illegal activity in high traffic areas.’’;
11
(2) in subsection (b)—
12
(A) in the subsection heading, by striking
13
‘‘FENCING AND ROAD IMPROVEMENTS’’ and in-
14
serting ‘‘PHYSICAL BARRIERS’’;
15
(B) in paragraph (1)—
16
(i) in subparagraph (A)—
17
(I) by striking ‘‘subsection (a)’’
18
and inserting ‘‘this section’’; and
19
(II) by striking ‘‘roads, lighting,
20
cameras, and sensors to gain’’ and in-
21
serting ‘‘tactical infrastructure, and
22
technology
to
achieve
situational
23
awareness and’’;
24
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•S 422 IS
(ii) by amending subparagraph (B) to
1
read as follows:
2
‘‘(B) PHYSICAL BARRIERS AND TACTICAL
3
INFRASTRUCTURE.—The Secretary, in carrying
4
out this section, shall deploy along the United
5
States border the most practical and effective
6
physical barriers and tactical infrastructure
7
available for achieving situational awareness
8
and operational control of the border.’’;
9
(iii) in subparagraph (C)—
10
(I) in clause (i)—
11
(aa) by striking ‘‘the Sec-
12
retary of the Interior, the Sec-
13
retary of Agriculture, States,
14
local governments, Indian tribes,
15
and’’ and inserting ‘‘appropriate
16
Federal agency partners, appro-
17
priate representatives of Federal,
18
State, Tribal, and local govern-
19
ments, and appropriate private’’;
20
and
21
(bb) by striking ‘‘fencing is’’
22
and inserting ‘‘physical barriers
23
are’’; and
24
(II) in clause (ii)—
25
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•S 422 IS
(aa) in subclause (I), by
1
striking ‘‘or’’ after the semicolon
2
at the end;
3
(bb) by amending subclause
4
(II) to read as follows:
5
‘‘(II) delay the transfer to the
6
United States of the possession of
7
property or affect the validity of any
8
property acquisition by the United
9
States by purchase or eminent do-
10
main, or to otherwise affect the emi-
11
nent domain laws of the United States
12
or of any State; or’’; and
13
(cc) by adding at the end
14
the following:
15
‘‘(III) create any right or liability
16
for any party.’’; and
17
(iv) by striking subparagraph (D);
18
(C) in paragraph (2)—
19
(i) by striking ‘‘Attorney General’’
20
and inserting ‘‘Secretary of Homeland Se-
21
curity’’; and
22
(ii) by striking ‘‘this subsection and
23
shall commence construction of fences’’
24
and inserting ‘‘this section and shall com-
25
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•S 422 IS
mence the construction of physical bar-
1
riers’’;
2
(D) by amending paragraph (3) to read as
3
follows:
4
‘‘(3) AGENT SAFETY.—In carrying out this sec-
5
tion, the Secretary of Homeland Security, when de-
6
signing, constructing, and deploying physical bar-
7
riers, tactical infrastructure, or technology, shall in-
8
corporate such safety features into such design, con-
9
struction, or deployment of such physical barriers,
10
tactical infrastructure, or technology, as the case
11
may be, that the Secretary determines, in consulta-
12
tion with the labor organization representing agents
13
of U.S. Border Patrol, are necessary to maximize
14
the safety and effectiveness of officers or agents of
15
the Department of Homeland Security or of any
16
other Federal agency deployed in the vicinity of such
17
physical barriers, tactical infrastructure, or tech-
18
nology.’’; and
19
(E) in paragraph (4), by striking ‘‘this
20
subsection’’ and inserting ‘‘this section’’;
21
(3) by striking subsection (c);
22
(4) by inserting after subsection (b) the fol-
23
lowing:
24
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‘‘(c) TECHNOLOGY.—In carrying out this section, the
1
Secretary of Homeland Security shall deploy along the
2
United States border the most practical and effective tech-
3
nology available for achieving situational awareness and
4
operational control of the border.’’; and
5
(5) by adding at the end the following:
6
‘‘(e) DEFINITIONS.—In this section:
7
‘‘(1) ADVANCED UNATTENDED SURVEILLANCE
8
SENSORS.—The term ‘advanced unattended surveil-
9
lance sensors’ means sensors that utilize an onboard
10
computer to analyze detections in an effort to dis-
11
cern between vehicles, humans, and animals, and ul-
12
timately filter false positives prior to transmission.
13
‘‘(2) HIGH TRAFFIC AREAS.—The term ‘high
14
traffic areas’ means areas in the vicinity of the
15
United States border that—
16
‘‘(A) are within the responsibility of U.S.
17
Customs and Border Protection; and
18
‘‘(B) have significant unlawful cross-border
19
activity, as determined by the Secretary of
20
Homeland Security.
21
‘‘(3) OPERATIONAL CONTROL.—The term ‘oper-
22
ational control’ has the meaning given such term in
23
section 2(b) of the Secure Fence Act of 2006 (Public
24
Law 109–367; 8 U.S.C. 1701 note).
25
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•S 422 IS
‘‘(4) PHYSICAL BARRIERS.—The term ‘physical
1
barriers’ includes reinforced fencing, the border bar-
2
rier system, and levee walls.
3
‘‘(5) SITUATIONAL AWARENESS.—The term ‘sit-
4
uational awareness’ has the meaning given such
5
term in section 1092(a)(7) of the National Defense
6
Authorization Act for Fiscal Year 2017 (Public Law
7
114–328; 6 U.S.C. 223(a)(7)).
8
‘‘(6) TACTICAL
INFRASTRUCTURE.—The term
9
‘tactical infrastructure’ includes boat ramps, access
10
gates, checkpoints, lighting, and roads.
11
‘‘(7) TECHNOLOGY.—The term ‘technology’
12
means border surveillance and detection technology,
13
including—
14
‘‘(A) tower-based surveillance technology;
15
‘‘(B) deployable, lighter-than-air ground
16
surveillance equipment;
17
‘‘(C) Vehicle and Dismount Exploitation
18
Radars (VADER);
19
‘‘(D) 3-dimensional, seismic acoustic detec-
20
tion and ranging border tunneling detection
21
technology;
22
‘‘(E) advanced unattended surveillance
23
sensors;
24
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‘‘(F) mobile vehicle-mounted and man-
1
portable surveillance capabilities;
2
‘‘(G) unmanned aircraft systems; and
3
‘‘(H) other border detection, communica-
4
tion, and surveillance technology.
5
‘‘(8) UNMANNED AIRCRAFT SYSTEM.—The term
6
‘unmanned aircraft system’ has the meaning given
7
such term in section 44801(12) of title 49, United
8
States Code.’’.
9
(b) EXISTING WAIVERS NOT AFFECTED.—A waiver
10
issued by the Secretary of Homeland Security pursuant
11
to section 102(c) of the Illegal Immigration Reform and
12
Immigrant Responsibility Act of 1996 (division C of Pub-
13
lic Law 104–208; 8 U.S.C. 1103 note) that was published
14
in the Federal Register before the date of the enactment
15
of this Act shall not be affected by the amendment made
16
by subsection (a).
17
SEC. 4. RECODIFYING THE SECRETARY OF HOMELAND SE-
18
CURITY’S WAIVER AUTHORITY; ADDING PRE-
19
VIOUSLY WAIVED LEGAL REQUIREMENTS.
20
(a) IN GENERAL.—Section 103 of the Immigration
21
and Nationality Act (8 U.S.C. 1103) is amended by add-
22
ing at the end the following:
23
‘‘(h) WAIVER AUTHORITY.—
24
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‘‘(1) IN GENERAL.—Notwithstanding any other
1
provision of law, the Secretary of Homeland Security
2
shall have the authority to waive all legal require-
3
ments that the Secretary determines necessary to
4
ensure the expeditious design, testing, construction,
5
installation, deployment, integration, and operation
6
of the physical barriers, tactical infrastructure, and
7
technology under this section and section 102 of the
8
Illegal Immigration Reform and Immigrant Respon-
9
sibility Act of 1996 (division C of Public Law 104–
10
208; 8 U.S.C. 1103 note). Such waiver authority
11
shall also apply with respect to any maintenance car-
12
ried out on such physical barriers, tactical infra-
13
structure, or technology. Any such decision by the
14
Secretary shall be effective upon publication in the
15
Federal Register.
16
‘‘(2) NOTIFICATION.—Not later than 7 days
17
after the date on which the Secretary of Homeland
18
Security exercises the waiver authority under para-
19
graph (1), the Secretary shall notify the Committee
20
on Homeland Security of the House of Representa-
21
tives and the Committee on Homeland Security and
22
Governmental Affairs of the Senate of such waiver.
23
‘‘(3) FEDERAL COURT REVIEW.—
24
[Text truncated for display. Full text available on Congress.gov.]