[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 422 Introduced in Senate (IS)]
<DOC>
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
appropriated funds available for constructing such barrier until
expended, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Build the Wall Now Act''.
SEC. 2. RESUME CONSTRUCTION OF BARRIERS AND ROADS ALONG UNITED STATES
AND MEXICO BORDER.
(a) Definitions.--In this section:
(1) Department.--The term ``Department'' means the
Department of Homeland Security.
(2) Physical barriers.--The term ``physical barriers'' has
the meaning given such term in section 102(e) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, as
added by section 3(5) of this Act.
(3) Secretary.--The term ``Secretary'' means the Secretary
of Homeland Security.
(4) Tactical infrastructure; technology.--The terms
``tactical infrastructure'' and ``technology'' have the
meanings given such terms in section 102(e) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, as
added by section 3(5) of this Act.
(b) In General.--
(1) Immediate resumption of border barrier construction.--
Not later than 1 day after the date of the enactment of this
Act, the Secretary shall resume all projects relating to the
construction of physical barriers, tactical infrastructure, and
technology along the international border between the United
States and Mexico that were underway, or being planned for,
prior to January 20, 2021.
(2) No cancellations.--The Secretary may not cancel any
contract for activities related to the construction of the
border barrier system that was entered into on or before
January 20, 2021.
(3) Use of funds.--To carry out this section, the Secretary
shall expend all funds that were appropriated or explicitly
obligated for the construction of the border barrier system on
or after October 1, 2016.
(c) Uphold Negotiated Agreements.--The Secretary shall ensure that
all agreements entered into before January 20, 2021, that were executed
in writing between the Department and any State, local, or Tribal
government, private citizen, or other stakeholder are honored by the
Department relating to current and future construction of the border
barrier system in accordance with such agreements.
(d) Availability of Funds.--Notwithstanding any other provision of
law, any amount appropriated or otherwise made available during fiscal
year 2018, 2019, 2020, or 2021 for any project relating to the
construction of physical barriers, tactical infrastructure, and
technology along the southern border shall remain available until
expended.
(e) Use of Funds.--Any amounts appropriated or otherwise made
available for fiscal year 2021 that remain available pursuant to
subsection (d) may only be used for barriers, technology, or roads
that--
(1) use--
(A) operationally effective designs deployed as of
the date of enactment of the Consolidated
Appropriations Act, 2017 (Public Law 115-31), such as
currently deployed steel bollard designs, that
prioritize agent safety; or
(B) operationally effective adaptations of such
designs that help mitigate community or environmental
impacts of barrier system construction, including
adaptations based on consultation with jurisdictions
within which barrier system will be constructed; and
(2) are constructed in the highest priority locations as
identified in the Border Security Improvement Plan.
SEC. 3. IMPROVING THE REQUIREMENTS FOR BARRIERS ALONG THE SOUTHERN
BORDER.
(a) In General.--Section 102 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (division C of Public Law 104-208;
8 U.S.C. 1103 note) is amended--
(1) in subsection (a), by striking ``to install'' and all
that follows and inserting ``(including the removal of
obstacles to detection of illegal entrants) to design, test,
construct, install, deploy, integrate, and operate physical
barriers, tactical infrastructure, and technology in the
vicinity of the United States border to achieve situational
awareness and operational control of the border and deter,
impede, and detect illegal activity in high traffic areas.'';
(2) in subsection (b)--
(A) in the subsection heading, by striking
``Fencing and Road Improvements'' and inserting
``Physical Barriers'';
(B) in paragraph (1)--
(i) in subparagraph (A)--
(I) by striking ``subsection (a)''
and inserting ``this section''; and
(II) by striking ``roads, lighting,
cameras, and sensors to gain'' and
inserting ``tactical infrastructure,
and technology to achieve situational
awareness and'';
(ii) by amending subparagraph (B) to read
as follows:
``(B) Physical barriers and tactical
infrastructure.--The Secretary, in carrying out this
section, shall deploy along the United States border
the most practical and effective physical barriers and
tactical infrastructure available for achieving
situational awareness and operational control of the
border.'';
(iii) in subparagraph (C)--
(I) in clause (i)--
(aa) by striking ``the
Secretary of the Interior, the
Secretary of Agriculture,
States, local governments,
Indian tribes, and'' and
inserting ``appropriate Federal
agency partners, appropriate
representatives of Federal,
State, Tribal, and local
governments, and appropriate
private''; and
(bb) by striking ``fencing
is'' and inserting ``physical
barriers are''; and
(II) in clause (ii)--
(aa) in subclause (I), by
striking ``or'' after the
semicolon at the end;
(bb) by amending subclause
(II) to read as follows:
``(II) delay the transfer to the
United States of the possession of
property or affect the validity of any
property acquisition by the United
States by purchase or eminent domain,
or to otherwise affect the eminent
domain laws of the United States or of
any State; or''; and
(cc) by adding at the end
the following:
``(III) create any right or
liability for any party.''; and
(iv) by striking subparagraph (D);
(C) in paragraph (2)--
(i) by striking ``Attorney General'' and
inserting ``Secretary of Homeland Security'';
and
(ii) by striking ``this subsection and
shall commence construction of fences'' and
inserting ``this section and shall commence the
construction of physical barriers'';
(D) by amending paragraph (3) to read as follows:
``(3) Agent safety.--In carrying out this section, the
Secretary of Homeland Security, when designing, constructing,
and deploying physical barriers, tactical infrastructure, or
technology, shall incorporate such safety features into such
design, construction, or deployment of such physical barriers,
tactical infrastructure, or technology, as the case may be,
that the Secretary determines, in consultation with the labor
organization representing agents of U.S. Border Patrol, are
necessary to maximize the safety and effectiveness of officers
or agents of the Department of Homeland Security or of any
other Federal agency deployed in the vicinity of such physical
barriers, tactical infrastructure, or technology.''; and
(E) in paragraph (4), by striking ``this
subsection'' and inserting ``this section'';
(3) by striking subsection (c);
(4) by inserting after subsection (b) the following:
``(c) Technology.--In carrying out this section, the Secretary of
Homeland Security shall deploy along the United States border the most
practical and effective technology available for achieving situational
awareness and operational control of the border.''; and
(5) by adding at the end the following:
``(e) Definitions.--In this section:
``(1) Advanced unattended surveillance sensors.--The term
`advanced unattended surveillance sensors' means sensors that
utilize an onboard computer to analyze detections in an effort
to discern between vehicles, humans, and animals, and
ultimately filter false positives prior to transmission.
``(2) High traffic areas.--The term `high traffic areas'
means areas in the vicinity of the United States border that--
``(A) are within the responsibility of U.S. Customs
and Border Protection; and
``(B) have significant unlawful cross-border
activity, as determined by the Secretary of Homeland
Security.
``(3) Operational control.--The term `operational control'
has the meaning given such term in section 2(b) of the Secure
Fence Act of 2006 (Public Law 109-367; 8 U.S.C. 1701 note).
``(4) Physical barriers.--The term `physical barriers'
includes reinforced fencing, the border barrier system, and
levee walls.
``(5) Situational awareness.--The term `situational
awareness' has the meaning given such term in section
1092(a)(7) of the National Defense Authorization Act for Fiscal
Year 2017 (Public Law 114-328; 6 U.S.C. 223(a)(7)).
``(6) Tactical infrastructure.--The term `tactical
infrastructure' includes boat ramps, access gates, checkpoints,
lighting, and roads.
``(7) Technology.--The term `technology' means border
surveillance and detection technology, including--
``(A) tower-based surveillance technology;
``(B) deployable, lighter-than-air ground
surveillance equipment;
``(C) Vehicle and Dismount Exploitation Radars
(VADER);
``(D) 3-dimensional, seismic acoustic detection and
ranging border tunneling detection technology;
``(E) advanced unattended surveillance sensors;
``(F) mobile vehicle-mounted and man-portable
surveillance capabilities;
``(G) unmanned aircraft systems; and
``(H) other border detection, communication, and
surveillance technology.
``(8) Unmanned aircraft system.--The term `unmanned
aircraft system' has the meaning given such term in section
44801(12) of title 49, United States Code.''.
(b) Existing Waivers Not Affected.--A waiver issued by the
Secretary of Homeland Security pursuant to section 102(c) of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(division C of Public Law 104-208; 8 U.S.C. 1103 note) that was
published in the Federal Register before the date of the enactment of
this Act shall not be affected by the amendment made by subsection (a).
SEC. 4. RECODIFYING THE SECRETARY OF HOMELAND SECURITY'S WAIVER
AUTHORITY; ADDING PREVIOUSLY WAIVED LEGAL REQUIREMENTS.
(a) In General.--Section 103 of the Immigration and Nationality Act
(8 U.S.C. 1103) is amended by adding at the end the following:
``(h) Waiver Authority.--
``(1) In general.--Notwithstanding any other provision of
law, the Secretary of Homeland Security shall have the
authority to waive all legal requirements that the Secretary
determines necessary to ensure the expeditious design, testing,
construction, installation, deployment, integration, and
operation of the physical barriers, tactical infrastructure,
and technology under this section and section 102 of the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (division C of Public Law 104-208; 8 U.S.C. 1103 note).
Such waiver authority shall also apply with respect to any
maintenance carried out on such physical barriers, tactical
infrastructure, or technology. Any such decision by the
Secretary shall be effective upon publication in the Federal
Register.
``(2) Notification.--Not later than 7 days after the date
on which the Secretary of Homeland Security exercises the
waiver authority under paragraph (1), the Secretary shall
notify the Committee on Homeland Security of the House of
Representatives and the Committee on Homeland Security and
Governmental Affairs of the Senate of such waiver.
``(3) Federal court review.--
``(A) In general.--The district courts of the
United States shall have exclusive jurisdiction to hear
all causes or claims arising from any action
undertaken, or any decision made, by the Secretary of
Homeland Security pursuant to paragraph (1). A cause of
action or claim may only be brought alleging a
violation of the Constitution of the United States. The
court shall not have jurisdiction to hear any claim not
specified in this subparagraph.
``(B) Time for filing of complaint.--Any cause or
claim brought pursuant to subparagraph (A) shall be
filed not later than 60 days after the date of the
action or decision made by the Secretary of Homeland
Security. A claim shall be barred unless it is filed
within the time specified.
``(C) Ability to seek appellate review.--An
interlocutory or final judgment, decree, or order of
the district court may be reviewed only upon petition
for a writ of certiorari to the Supreme Court of the
United States.
``(4) Previously waived legal requirements.--
``(A) In general.--Any project relating to the
construction of physical barriers, tactical
infrastructure, and technology along the international
border between the United States and Mexico shall be
exempt from any law or regulation referred to in
subparagraph (B).
``(B) Elements.--The laws and regulations referred
to in this subparagraph are--
``(i) an Act to facilitate the work of the
Forest Service (Public Law 87-869);
``(ii) subchapter II of chapter 5 and
chapter 7 of title 5, United States Code
(commonly known as the `Administrative
Procedure Act');
``(iii) the Arizona Desert Wilderness Act
(6 U.S.C. 460ddd et seq.);
``(iv) the Arizona-Idaho Conservation Act
of 1988 (Public Law 100-696);
``(v) the Act of June 8, 1940 (16 U.S.C.
668 et seq.) (commonly known as the `Bald and
Golden Eagle Protection Act');
``(vi) the Clean Air Act (42 U.S.C. 7401 et
seq.);
``(vii) the Federal Water Pollution Control
Act (33 U.S.C. 1151 et seq.) (commonly known as
the `Clean Water Act');
``(viii) the Coastal Zone Management Act
(16 U.S.C. 1451 et seq.);
``(ix) the Comprehensive Environmental
Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9601 et seq.);
``(x) the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.);
``(xi) the Farmland Protection Policy Act
(7 U.S.C. 4201 et seq.);
``(xii) the Federal Cave Resources
Protection Act of 1988 (16 U.S.C. 4301 et
seq.);
``(xiii) chapter 63 of title 31, United
States Code (originally enacted as the `Federal
Grants and Cooperative Agreements Act of
1977');
``(xiv) the Federal Land Policy and
Management Act of 1976 (43 U.S.C. 1701 et
seq.);
``(xv) the Fish and Wildlife Coordination
Act (16 U.S.C. 662 et seq.);
``(xvi) the Migratory Bird Conservation Act
of 1929 (16 U.S.C. 715 et seq.);
``(xvii) the Migratory Bird Treaty Act (16
U.S.C. 703 et seq.);
``(xviii) the Military Lands Withdrawal Act
of 1999 (title XXX of Public Law 106-65);
``(xix) the Act of June 12, 1960 (Public
Law 86-517; 16 U.S.C. 528 et seq.) (commonly
known as the `Multiple-Use and Sustained-Yield
Act of 1960');
``(xx) the National Environmental Policy
Act of 1969 (42 U.S.C. 4321 et seq.);
``(xxi) the National Fish and Wildlife Act
of 1956 (16 U.S.C. 742a et seq.);
``(xxii) the National Forest Management Act
of 1976 (16 U.S.C. 472a et seq.);
``(xxiii) the National Historic
Preservation Act (16 U.S.C. 470 et seq.);
``(xxiv) the National Parks and Recreation
Act of 1978 (Public Law 95-625);
``(xxv) the National Trails System Act (16
U.S.C. 1241 et seq.);
``(xxvi) the National Wildlife Refuge
System Administration Act of 1966 (16 U.S.C.
668dd et seq.);
``(xxvii) the Native American Graves
Protection and Repatriation Act (25 U.S.C. 3001
et seq.);
``(xxviii) the Noise Control Act of 1972
(42 U.S.C. 4901 et seq.);
``(xxix) the Otay Mountain Wilderness Act
of 1999 (Public Law 106-145);
``(xxx) subtitle D of title VI of the
Omnibus Public Land Management Act of 2009 (16
U.S.C. 470aaa et seq.) (commonly known as the
`Paleontological Resources Preservation Act');
``(xxxi) section 10 of the Act of August 4,
1939 (43 U.S.C. 387) (commonly known as the
`Reclamation Project Act of 1939');
``(xxxii) the Act of March 3, 1899 (30
Stat. 1121, chapter 425; (33 U.S.C. 403 et
seq.) (commonly known as the `Rivers and
Harbors Act of 1899');
``(xxxiii) the Safe Drinking Water Act (42
U.S.C. 300f et seq.);
``(xxxiv) the Sikes Act (16 U.S.C. 670 et
seq.);
``(xxxv) the Small Business Act (15 U.S.C.
631 et seq.);
``(xxxvi) the Solid Waste Disposal Act (42
U.S.C. 6901 et seq.) (commonly known as the
`Resource Conservation and Recovery Act of
1976');
``(xxxvii) the Wild and Scenic Rivers Act
(16 U.S.C. 1271 et seq.);
``(xxxviii) the Act of December 15, 1971
(16 U.S.C. 1331 et seq.) (commonly known as the
`Wild Free-Roaming Horses and Burros Act of
1971');
``(xxxix) the Wilderness Act (16 U.S.C.
1131 et seq.);
``(xl) sections 2304, 2304c, 2305, 2505a,
and 2306a of title 10, United States Code;
``(xli) section 550 of title 40, United
States Code;
``(xlii) title 41, United States Code;
``(xliii) sections 100101(a), 100751(a),
and 102101 of title 54, United States Code;
``(xliv) chapters 1003, 1005, 1007, 1009,
1021, 3125, 3201, and 3203 of title 54, United
States Code;
``(xlv) division A of subtitle III of title
54, United States Code;
``(xlvi) part 125 of title 13, Code of
Federal Regulations; and
``(xlvii) sections 16.504, 16.505, 17.205,
17.207, 22.404, 22.404-5, and 28.102-1 of title
48, Code of Federal Regulations.
``(5) Definitions.--In this subsection, the terms `physical
barriers', `tactical infrastructure', and `technology' have the
meanings given such terms in section 102(e) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(division C of Public Law 104-208; 8 U.S.C. 1103 note).''.
(b) Clerical Amendment.--The table of contents of the Immigration
and Nationality Act (8 U.S.C. 1101 et seq.) is amended by striking the
item relating to section 103 and inserting the following:
``Sec. 103. Powers and duties of the Secretary, the Under Secretary,
and the Attorney General.''.
SEC. 5. PROHIBITION AGAINST USE OF FUNDS TO IMPLEMENT OR ENFORCE
PRESIDENTIAL PROCLAMATION 10142.
No funds, resources, or fees made available to the Secretary of
Homeland Security, or to any other official of any Federal agency by
any Act of Congress for any fiscal year, may be used to implement or
enforce Presidential Proclamation 10142 of January 20, 2021 (86 Fed.
Reg. 7225).
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