A conservative legal expert says President Donald Trump has three legal powers to bypass the establishment’s bipartisan opposition to a border wall.
The first is in Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), a law which Congress passed in 1996 and has subsequently amended several times. The law, codified here, gives DHS a clear mandate to construct reinforced fencing along at least 700 miles of the 1,933-mile land border with Mexico.
… [second,] the text of Congress’ recently passed spending bill does give the president flexibility for a very small amount of funding. When it comes to new military construction, in particular, Sec. 8074 expressly allows funding for those deemed “in the interest of national security” — a case that would not be difficult to make given that Mexico’s drug cartels are fueling the opioid trade and played a role in the murder of 29,000 Mexicans last year. Moreover, the section does not require that those funds be approved by Congress, it merely requires that the defense committees receive “prior notification” before they are used.
Finally, Trump could take a page out of President Obama’s playbook and fund the border wall using a trade vehicle — specifically the implementing legislation for a renegotiated North American Free Trade Agreement (NAFTA). The fast track law, which governs consideration of trade agreements, contains language allowing the president to include provisions which he deems “strictly necessary or appropriate” to the respective trade agreement. This is the same broad language President Obama used to add Trade Adjustment Assistance to the Korea free trade agreement. Similar provisions were included in the original NAFTA legislation.
Any Trump effort to build a barrier via these alternatives will be met with bipartisan opposition from the pro-migration Democrats and business-first Republicans who provided funds in the 2018 omnibus for just 50 miles of border fence.