'The Secure Fence Act of 2006: A Shrinking Goal?'
By Marion Edwyn Harrison, Esq. (04/06/07)
On October 4 and December 7, 2006, this column reported upon the enactment and risky fate of the Secure Fence Act of 2006 (“Act”), commentaries following. As too often happens with respect to pending legislative and administrative actions in Washington, full fruition appears less and less likely to come to pass.
The Act requires appropriations. The 109th Congress adjourned sine die - “without [a] date,” that is, final adjournment - without appropriating funds to implement the Act. The 110th Congress, to the extent one dare project, seems uninterested in appropriating full funds; indeed, some United States Senators and Representatives seem disinterested in appropriating more than rather nominal funds. This appears to be so even in the context of delayed appropriations, a relevant measure, if for no other reason, inasmuch as the 109th Congress was so slow in appropriating.
The Act mandates deadlines - among those deadlines, an interlocking surveillance camera system to be installed by May 30, 2007; a specifically designated portion of fence to be completed by December 31, 2008. Either nothing, except possibly some preliminary paper work, has been accomplished or the fact of accomplishment is not public.
There also have been discussions between certain Senators and their ubiquitous staffs on the one hand and various George W. Bush Administration people on the other hand along the lines that the totality of fence which the Act legislated will be reduced - according to one (probably reasonably accurate) rumor, from some 850 miles to about 370 miles (along the Mexican Border, which is about 1,950 miles).
The fence issue naturally ties into considerations of electronic surveillance, number of Border Patrol, so on. Unfortunately the fence issue once again - this time perhaps nearly fatally - is tied by some into issues of citizenship, permanent residence, work permits, extradition and the like. These clearly are separate and distinct issues. There can be numerous views as to these subjects but all of them deal with aspects of treatment of aliens, mostly the unlawful, who are in this country. The border-security issue, fence and all, deals only with the issue of substantially reducing - ideally, of eliminating - unlawful entry.
The Administration and the Congress have a duty, which rationally may not be denied, to attempt to block or substantially block illegal entry. That clear duty should not be confused with the manifold, and sometimes complex, issues of dealing with those people who already are within this country.
Marion Edwyn Harrison, Esq. is President of, and Counsel to, the Free Congress Foundation
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Free Congress Foundation Commentary
“Don’t Fence Me In . . .” Must Not Apply to Illegals
By Marion Edwyn Harrison, Esq.
October 4, 2006
One poll reports from its sampling that some 40% of Mexicans living in the other United States - that is, Los Estados Unidos de Mexico - would immigrate to the United States of America given the opportunity. The accuracy of the poll matters not; the fact is millions of Mexican citizens would so immigrate if they could - and, considering the Mexican economy, would do so with cause. Thus, millions of Mexicans in a few years or sooner subconsciously may be singing that long popular Norteamericano line, “Give me land, lots of land, on the great, wide open prairie. Don’t fence me in . . .” (And, by way of disclosure, this writer if trapped within Mexican poverty and absence of opportunity might have attempted to immigrate, lawfully or otherwise.)
How so that the line from the popular ditty “Don’t Fence Me In” might apply to Mexicans seeking unlawfully to join an estimated 33 million fellow ethnic Mexicans (counting lawful and unlawful) within our United States?
The answer: A new statute, arising from H.R. 6061, titled the Secure Fence Act of 2006 (“Act”), passed by the House of Representatives on September 14, 2006, by the Senate on September 29, in the Senate by an 80 - 19 vote, Senator Edward Moore Kennedy absent.
Excerpts sufficient to understand the import of the Act follow:
“Sec[tion] 2 . . .
(a) . . . Not later than 18 months after . . . enactment . . . the Secretary of Homeland Security shall take all actions . . . to achieve and maintain operational control over the . . . land and maritime borders . . . to include . . .
(1) systematic surveillance of the . . . borders through more effective use of personnel and technology, such as unmanned aerial vehicles, ground-based sensors, satellites, radar coverage, and cameras; and
(2) physical infrastructure . . . to prevent unlawful entry . . . and [to] facilitate access to the . . . borders by United States Customs and Border Protection, such as additional checkpoints, all[-]weather access roads, and vehicle barriers.
(b) . . . the term ‘operational control’ means the prevention of all unlawful entries . . .
Sec[tion] 3 . . .
(2) . . . The Secretary of Homeland Security shall provide at least 2 layers of reinforced fencing, the installation of additional physical barriers, lighting, cameras, and sensors – (i) extending from 10 miles west of the Tecate, California, port of entry to 10 miles east of [same]; (i i) . . . from 10 miles west of the Calexico, California, port of entry to 5 miles east of the Douglas, Arizona, port of entry; (iii) . . . from 5 miles west of the Columbus, New Mexico, port of entry to 10 miles east of El Paso, Texas; (iv) . . . from 5 miles northwest of the Del Rio, Texas, port of entry to 5 miles southeast of the Eagle Pass, Texas, port of entry; and (v) . . . 15 miles northwest of the Laredo, Texas, port of entry to the Brownsville, Texas, port of entry . . .”
Effective and Secretarial reporting dates vary, from May 30, 2007 to December 31, 2008.
Let us assume full and timely appropriations for implementation. Let us recognize that Secretary Earl Chertoff and the Department of Homeland Security have an unprecedented and challenging task. The Act enjoys a strongly affirmative legislative history. Judge Chertoff is bright and reflects a sense of command. We reasonably may foresee that within several years the Mexican Border (and the maritime borders, to which the Act also applies) overwhelmingly, if not 100%, will be closed to unlawful immigration.
There is no convincing reason why in the eight William J. Clinton and first five George W. Bush Administration years, covering seven Congresses, no such statute was enacted. An estimated 11 - 12 million unlawful entrants did not come overnight. However, as often occurs, the legislative process is completed years later than ideal. The point is that full and vigorous Homeland Security implementation of the Act, with timely and adequate Congressional appropriations, could come as close as reasonably may be expected to closing unlawful immigrant entry.
The George W. Bush Administration and the 109th Congress (assuming adequate and timely appropriations) should be congratulated.
What, if anything, to do with the 11 - 12 million unlawful residents of this country is another, more complicated, perplexing and controversial, issue.
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Free Congress Foundation Commentary
No Money, No Fence, No Congress – Open Border Access Continues
By Marion Edwyn Harrison, Esq.
December 07, 2006
As discussed in the Notable News Now column posted October 4, 2006, Congress enacted, and President George W. Bush signed, the Secure Fence Act of 2006 (“Act”), designed to authorize erection of a fence along portions of the Mexican Border to assist our American Border Patrol and various State and local law-enforcement forces in reducing the quantity of unlawful immigration.
Look, if you would, at the penultimate paragraph in the following column and the find the rub. The 109th Congress appears about to adjourn without having appropriated the money to implement the Act. If the 109th Congress were to fail to appropriate that money would the 110th Congress do so?
There doubtless are a few optimists who believe that a successor Congress - for reasons of clarity, consistency or otherwise - ought to appropriate money to fund an existing statute unless the successor Congress is to repeal the statute, which, of course, a successor Congress has the right to attempt to do. However, upon more than one occasion in history a successor Congress has declined to fund, or fully to fund, a law enacted by a prior Congress.
The Democratic Leadership of the incoming Congress has not publicly clarified its position as to funding of the Act. However, statisticians, pollsters and other analysts of the November 7, 2006 Congressional elections which produced Democratic majorities in both Houses of Congress report that the percentage of Hispanic or Latino voters voting Democratic rose substantially. These voters, of course, presumably with statistically few exceptions, are lawful immigrants. However, many of them favor massive further Hispanic or Latino immigration into this country. Apparently nobody has attempted to quantify just how many so favor. Nevertheless, the thinking of the 110th Congress Leadership may be that less effort should be made to prevent or even to discourage unlawful immigrants from crossing the Mexican Border.
A 110th Congress failure to fund the Act would prove that the 109th Congress erred in not funding it. We imminently shall know the full measure of 109th Congress activity. If it fails to fund we may not know to a certainty that funding is dead, the Act effectively nullified, until very near the November 2008 Presidential and Congressional Elections. However, it cannot be gainsaid but that the 109th Congress should do it - and should have done it before now.
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