23 PPAs—short for “Programs, Projects, or Activities”—are subdivisions of appropriations. See following text box. 24 H.Rept. 109-699, p. 130. For a detailed discussion of how the 2008 Appropriations Act amended IIRIRA and modified fencing requirements, see CRS Report R43975, Barriers Along the U.S. Borders: Key Authorities and Requirements, by Michael John Garcia. Congressional Research Service 5 link to page 10 link to page 11 DHS Border Barrier Funding Through FY2021 Figure 1. Development and Deployment PPA Request and Enacted Level, FY2008-FY2016

FY2008-FY2016 Millions of Nominal Dollars of Budget Authority

Source: CRS analysis of DHS Appropriations conference reports.

Notes: "“Development and Deployment"” is a PPA (division) of the Border Security Fencing, Infrastructure, and Technology (BSFIT) appropriation for putting technology and tactical infrastructure in the field. In FY2007 $1,187,565,000 was appropriated for BSFIT without a formal request or appropriation reflecting the Development and Deployment structure. The BSFIT Development and Deployment structure remained unchanged from its establishment until the implementation of the Common Appropriations Structure (CAS) for DHS in the FY2017 appropriations cycle, which redistributed BSFIT funding into two separate and broader appropriations. This implementation has complicated efforts to make detailed comparisons in funding levels across the time periods before and after FY2016.25 Identifying Border Barrier Funding within BSFIT The level of detail in DHS budget requests or appropriations bills and reportsDevelopment and Deployment structure.

repairs. At the end of FY2016, approximately 654 miles—roughly one-third of the international boundary—had a primary layer of barriers.29 Approximately 300 miles of the primary barrier was designed to prevent vehicles from entering, and approximately 350 additional miles was designed to block people on foot (i.e., pedestrian fencing). CBP has used various materials for pedestrian fencing, including bollard, steel mesh, and chain link, and employed bollard and Normandy-style fencing for vehicle barriers.30 In certain areas, the primary layer was backed by a secondary layer of pedestrian fencing as well as, in rare cases, tertiary fencing (typically to delineate property lines). Figure 2. CBP-Reported Data on Border Barrier Funding, FY2007-FY2016 Millions of Nominal Dollars Figure 2. CBP-Reported Data on Border Barrier Funding, FY2007-FY2016

Source: U.S. Customs and Border Protection, "“Summary of Historical Spending for TI and Wall Programs," ” email attachment sent to CRS November 26, 2018.

Notes Note: Data provided in Table 1. infrastructure may allow for inclusion of some elements only peripherally related to border barriers. Taking these factors into account, given the limited mileage constructed prior to FY2007, the above data present the best available understanding of appropriations and spending on border barriers in the 2007-2016 period. 29 GAO-17-331, p. 1. 30 GAO-17-331; see pp. 11-12 for images of barrier types and materials for pedestrian/vehicle and modern/legacy fencing. Congressional Research Service 7 DHS Border Barrier Funding Through FY2021 : Data provided in Table 1.

47 P.L. 116-93, Div. D, §209(b)(1)(B). 48 P.L. 116-93, Div. D, §209(b)(2). 49 Department of Homeland Security, U.S. Customs and Border Protection Budget Overview: Fiscal Year 2021 Congressional Justification, Washington, DC, p. p. CBP-PC&I-41. 50 P.L. 116-260, Div. F, §210. Congressional Research Service 12 DHS Border Barrier Funding Through FY2021 Figure 3. DHS Funding Available for Border Barrier Construction,* FY2007-FY2020

FY2021 Millions of Nominal Dollars of Budget Authority

Source Sources: CRS analysis of U.S. Customs and Border Protection, "“Summary of Historical Spending for TI and Wall Programs,"” email attachment sent to CRS November 26, 2018; CBP Budget Justifications and appropriations committee reports and conference reports for FY2019-FY2020.

FY2021. Notes: TI = Tactical Infrastructure. "“Transferred from Treasury"” indicates $601 million transferred to DHS from the Treasury Asset Forfeiture Fund to support border barrier funding.

* * This does not include $2.5 billion in FY2019 DOD counterdrug funding and $3.6 billion in FY2019 military construction funding, as those funds arewere not under DHS control. Border Barrier Funding Outside the Appropriations Process The same day that President Trump signed the FY2019 consolidated appropriations act into law, he declared a national emergency on the southern border of the United States. A fact sheet accompanying the declaration indicated the President’s intent to make additional funding available for border barriers through three methods, sequentially. These methods and related actions involved the following: Drawing about $601 million from the Treasury Forfeiture Fund A letter from the Department of the Treasury on February 15, 2019, indicated that those funds would be made available to DHS for “law enforcement border security efforts” ($242 million available March 2, and $359 million after additional forfeitures were received).51 According to court documents, Treasury transferred the full $601 million to DHS on September 27, 2019. CBP reportedly was to use the funds as follows: • $261 million for future-year real estate planning and acquisition for border barrier construction along the southwest border. • $340 million for border barrier projects in the Rio Grande Valley Sector, of which • $124 million was for construction; and 51 Treasury Forfeiture Fund assets have been made available to support DHS missions in the past, although not on this scale—CBP does not require an emergency designation to receive or use these funds in support of its law enforcement missions. Congressional Research Service 13 DHS Border Barrier Funding Through FY2021 • $216 million was for construction management costs, increased project costs, and real estate planning and acquisition.52 Most of these funds were never obligated, and $455 million was returned to the Fund in June 2021.53 Making up to $2.5 billion available through the Department of Defense’s support for counterdrug activities (authorized under 10 U.S.C. §284)54 $1 billion was reprogrammed within the Department of Defense to its Drug Interdiction and Counter Drug Activities account, and that funding, in turn, was transferred for the U.S. Army Corps of Engineers to do certain DHS-requested work on border barriers.55 On May 10, 2019, the Department of Defense announced an additional $1.5 billion reprogramming of funding that had been dedicated to a variety of initiatives, including training and equipping Afghan security forces, programs to dismantle chemical weapons, and other activity for which savings or program delays had been identified. The DOD indicated that the funding would construct an additional 80 miles of border barriers. • Use of both of these tranches of reprogrammed funds to pay for border barrier projects had been blocked by a court injunction until July 26, 2019, when the Supreme Court ruled that the government could proceed with the use of the funds while a lower court determined the legality of the transfer that made the funds available.56 Reallocating up to $3.6 billion from various military construction projects under the authority invoked by the emergency declaration57 On September 3, 2019, then-Secretary of Defense Mark Esper issued a memorandum with the determination that “11 military construction projects … along the international border with Mexico, with an estimated total cost of $3.6 billion, are necessary to support the use of the armed forces in connection with the national emergency [at the southern border].”58 • The memorandum indicated $1.8 billion in unobligated military construction funding for overseas projects would be made available immediately, while $1.8 billion in domestic military construction projects would be provided once it is needed.59 On February 13, 2020, three days after submitting its FY2021 budget request to Congress, the Trump Administration again used its transfer authority to make an additional $3.8 billion available for border barrier construction under the 10 U.S.C. §284 counterdrug authority. Defense authorization and appropriations committees in the House opposed this reprogramming. The House attempted to include restrictions on border barrier funding in various vehicles, including the defense authorization and appropriations measures, but these provisions were ultimately not enacted. 52 Notice re Treasury Forfeiture Fund, State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG, Exhibit A: Declaration of Loren Flossman, January 8, 2020. 53 Department of Homeland Security, “Border Wall Plan Pursuant to Presidential Proclamation 10142,” June 9, 2021, p. 5. 54 For additional information on this authority, see CRS Insight IN11052, The Defense Department and 10 U.S.C. 284: Legislative Origins and Funding Questions, by Liana W. Rosen. 55 Standard CBP practice for construction of border barriers is that the real estate and construction contracting has been handled by the U.S. Army Corps of Engineers, with funding provided by CBP by transfer under the Economy Act. For more details, see CRS In Focus IF11224, Army Corps of Engineers and U.S. Southern Border Barriers, by Nicole T. Carter. 56 Order Granting in Part and Denying in Part Plaintiffs’ Motion for Preliminary Injunction at 8, Sierra Club v. Trump, Case No. 4:19-cv-00892-HSG (N.D. Cal. June 28, 2019), [ECF No. 185], https://www.crs.gov/products/Documents/8_Permanent_Injunction_Order/pdf. For additional information on the injunction, see CRS Legal Sidebar LSB10310, Supreme Court Stays Injunction That Had Blocked a Portion of the Administration’s Border Wall Funding, by Edward C. Liu and Benjamin Hayes,. 57 CRS Insight IN11017, Military Construction Funding in the Event of a National Emergency, by Michael J. Vassalotti and Brendan W. McGarry. 58 Memorandum from Mark T. Esper, Secretary of Defense, to Acting Under Secretary of Defense (Comptroller)/Chief Financial Officer, “Military Construction Necessary to Support the Use of the Armed Forces in Addressing the National Emergency at the Southern Border,” September 3, 2019. 59 Ibid. Congressional Research Service 14 DHS Border Barrier Funding Through FY2021 For more information on the process and disposition of the Department of Defense funding for border barriers, see CRS Report R45937, Military Funding for Southwest Border Barriers and CRS Insight IN11675, An Update on Military Funding for the Border Wall, by Christopher T. Mann. Border Barrier Funding Execution: January 2017 to January 2021 Over the course of the Trump Administration’s push for border barrier construction, the Government Accountability Office wrote a number of reports examining the process and results of this activity. GAO has access to extensive information beyond the public record regarding the execution of border barrier funding—information beyond what is available to CRS. GAO’s nonpartisan oversight mission and expertise provides a useful perspective on how border barriers have been developed in recent years. References from GAO’s summaries follow: Southwest Border Security: Additional Actions Needed to Better Assess Fencing’s Contributions to Operations and Provide Guidance for Identifying Capability Gaps (GAO-17-331), February, 2017: Border fencing is intended to benefit border security operations in various ways, according to officials from the U.S. Border Patrol…. For example, according to officials, border fencing supports Border Patrol agents’ ability to execute essential tasks, such as identifying illicit-cross border activities. CBP collects data that could help provide insight into how border fencing contributes to border security operations, including the location of illegal entries. However, CBP has not developed metrics that systematically use these, among other data it collects, to assess the contributions of border fencing to its mission. For example, CBP could potentially use these data to determine the extent to which border fencing diverts illegal entrants into more rural and remote environments, and border fencing’s impact, if any, on apprehension rates over time. Developing metrics to assess the contributions of fencing to border security operations could better position CBP to make resource allocation decisions with the best information available to inform competing mission priorities and investments.60 Southwest Border Security: CBP Is Evaluating Designs and Locations for Border Barriers but Is Proceeding Without Key Information (GAO-18-614), July, 2018: CBP and U.S. Border Patrol developed a methodology for prioritizing future barrier deployments along the entire southwest border, which included input from Border Patrol officials, data on illegal entry traffic, and analysis of operational and engineering feasibility for each potential location. However, the strategy did not include analysis of the costs associated with deploying barriers in each location or segment, which can vary depending on topography, land ownership, and other factors. Without assessing costs, consistent with leading practices for capital decision making, CBP does not have complete information for prioritizing locations to use its resources in the most cost-effective manner.61 DHS Annual Assessment: Most Acquisition Programs Are Meeting Goals but Data Provided to Congress Lacks Context Needed For Effective Oversight (GAO-21-175), January, 2021: CBP officials stated that land access and acquisition issues are significant challenges and could affect the Border Wall System Program’s ability to meet its schedule goals. 60 U.S. Government Accountability Office, Southwest Border Security: Additional Actions Needed to Better Assess Fencing’s Contributions to Operations and Provide Guidance for Identifying Capability Gaps, GAO-17-331, February 16, 2017, p. Highlights, https://www.gao.gov/products/gao-17-331. 61 U.S. Government Accountability Office, Southwest Border Security: CBP Is Evaluating Designs and Locations for Border Barriers but Is Proceeding Without Key Information, GAO-18-614, July 30, 2018, p. Highlights, https://www.gao.gov/products/gao-18-614. Congressional Research Service 15 link to page 20 DHS Border Barrier Funding Through FY2021 The program develops acquisition program baselines (APB) for new segments as funding becomes available. As of September 2020, DHS leadership had approved two APBs for the program—for funding received in fiscal years 2018 and 2019—and CBP’s Component Acquisition Executive had approved the program’s preliminary APB associated with fiscal year 2020 funding. The Border Wall System Program APBs do not account for related construction efforts that may limit oversight of the entire border wall system. For example, DOD has also provided support and funding for the construction of barriers and infrastructure along the southern border.… CBP officials told GAO that, although they provided a prioritized list of segments and construction standards to DOD, they have limited insight into DOD’s planned efforts.62 GAO noted in analyses of the FY2018 APB that the program was behind schedule by 15 months in the Rio Grande Valley and three months behind in San Diego due to delays in land acquisition.63 They also noted CBP anticipated a funding shortfall in operation and support costs for FY2019 and FY2020 projects, which would require additional appropriations to cover.64 Southwest Border: Schedule Considerations Drove Army Corps of Engineers’ Approaches to Awarding Construction Contracts through 2020 (GAO-21-372), June 2021: Some Department of Defense funding was only available for a short time before expiring, giving the Corps a tight schedule for awarding contracts. This—and the emergency declaration—led the Corps to depart from its planned acquisition approach. The Corps focused on starting construction quickly and maximizing the miles of border barrier panels it could build. To do so, it: * Awarded $4.3 billion in noncompetitive contracts. Competition helps ensure the government gets a good price. * Started work before agreeing to terms. The Corps awarded several contracts before terms, such as barrier specifications and cost, were finalized. By focusing on expediency in contracting, the government risks paying higher costs. Contractors completed most DOD-funded border barrier panels by the end of December 2020 as scheduled.65 In this report, GAO also noted a distinction between the construction of border barriers and the completion of a border wall system. The former is simply the placement of barrier panels, while the latter includes the sensors, lighting, and roads to deliver the operational capabilities DHS requires. GAO reported 345 miles of border barriers were built using counterdrug and military construction funding, and 112 miles were built using DHS funding. Sixty-nine6miles of contracted border wall system was completed – all on contracts awarded with DHS funding. Table 3 provides GAO’s breakdown of mileage and funding by budget source. 62 U.S. Government Accountability Office, DHS Annual Assessment: Most Acquisition Programs Are Meeting Goals but , GAO-21-175, January 19, 2021, p. 73, https://www.gao.gov/assets/gao-21-175.pdf. 63 GAO-21-175, p. 17. 64 GAO-21-175, pp. 75-76. 65 U.S. Government Accountability Office, Southwest Border: Schedule Considerations Drove Army Corps of Engineers’ Approaches to Awarding Construction Contracts through 2020, GAO-21-372, June 17, 2021, p. Highlights, https://www.gao.gov/products/gao-21-372. Congressional Research Service 16 DHS Border Barrier Funding Through FY2021 Table 3. Completion Status for Selected USACE Construction Contracts, as of January 2021 Wall System Miles Wall Panels Complete Funding Contracts Under Complete (contract Funds Funds Source Awarded Contract (miles) complete) Obligated Disbursed Department 7 295 258 0 $6.3 billion $4.0 billion of Defense counterdrug Military 6 96 87 0 $1.2 billion $0.9 billion Construction DHS 18 240 112 69 $3.0 billion $1.8 billion Total 31 631 miles 458 miles 69 miles $10.5 billion $6.6 billion Source: GAO-21-372, p. 34, citing U.S. Army Corps of Engineers (USACE) documentation and Federal Procurement Data System data. Notes: Numbers may not sum due to rounding. a. This includes 31 of the 39 contracts GAO reviewed. Six of the remaining contracts were exclusively for roads or gates, so do not count toward the total miles of border wall constructed. The two remaining contracts were terminated shortly after award. GAO went on to note this about the status of construction activity as of January 2021: All 13 DOD-funded contracts were expected to complete at least some wall panels by the end of 2020. Prior to the direction to pause work, 12 of these contracts were expected to be finished by the end of fiscal year 2021—i.e., the wall system was expected to be completed for most of the 391 miles awarded. While seven of the 18 contracts for border wall construction that were funded by DHS appropriations were completed, the completion timelines and construction status for the remaining DHS-funded contracts varied. Several were pushed back until fiscal year 2022 or suspended prior to the direction to pause work, and the completion status of the remaining miles is uncertain. According to CBP officials, these suspensions were related to difficulties they experienced in certifying real estate availability, which led USACE to pause construction activities, although design activities continued until the work stoppage.66 Fence or Wall? New or Replacement? Part of the debate around southwest border barriers in the 21st century was centered on the question of progress: What had the Trump Administration done with the border barrier funding it had received so far? Was the Administration “building the wall,” or was it “just replacing existing fences?” Framing the debate on barrier or wall building at the border using these extremes often did not capture the complexity of the situation, in terms of what CBP stated the barriers could be expected to do or the realities of the terrain and geography of the border. Much of the wave of construction—whether new or replacement barriers67—was 18- to 30-foot-high reinforced bollard fencing. It poses a formidable barrier, but it was not the high, thick masonry structure that most dictionaries term a “wall.” Nor is a border barrier a one-time investment or stand-alone solution to the issue of 66 GAO-21-372, p. 34. 67 There is dispute, as referenced by then-Acting DHS Secretary Wolf in his remarks of January 10, 2020 in Yuma, Arizona, over the use of “new” and “replacement” in discussions of barriers or miles of barriers. In this report, “new” barriers are those that contribute additional miles to the total count of the primary layer of fencing where no human-made barrier existed. “Replacement” refers to newly constructed barriers that either replace or update existing fencing of an earlier vintage, or upgrade fencing designed to prevent the entry of vehicles with fencing designed to prevent the entry of people. Congressional Research Service 17 DHS Border Barrier Funding Through FY2021 illegal border crossing or drug smuggling. CBP has viewed border barriers as a means of delaying and channeling those attempting to cross between ports of entry to increase the likelihood they can be detected, intercepted, and detained before they can evade authorities.68 Once constructed, border barriers and their supporting infrastructure of sensors, roads, lighting, and surveillance technology, need to be monitored and maintained to be effective. The designs being deployed were significantly different from the pedestrian fencing and vehicle barriers they replaced in some cases, and posed a much different challenge to those attempting to cross them. Roughly 300 miles of the existing border barriers constructed prior to the Trump Administration were barriers designed to impede vehicles, not people. Replacing vehicle barriers with the bollard-style pedestrian barriers may not have represented new miles of primary barriers along the border, but they represented a new obstacle that changes the calculus of those attempting to cross the border between ports of entry. How much progress does a number of miles of installed barrier panels or completed border wall system represent? There are a variety of different metrics that can be applied to assess that. The significant question to ask may not be whether a piece of barrier is “new” versus “replacement,” or how to count miles against a rhetorical requirement, but whether placement of a barrier or complete border wall system in a given location has the desired effect on illicit cross-border flows. In addition, Congress may consider whether the cost of constructing and maintaining a modern barrier in a particular area is worth all of the effects, both in terms of illicit border crossings and secondary impacts to landowners, communities, the environment, overall border security, and long term diplomatic and budgetary priorities. Change in Administration, Change in Policy On January 20, 2021, President Joe Biden terminated the Trump Administration’s national emergency with respect to the southern border, stating: “It shall be the policy of my Administration that no more American taxpayer dollars be diverted to construct a border wall.”69 The proclamation went on to direct a pause in construction and obligation of funds related to the construction of barriers, to the extent permitted by law, and directed agencies to collect a range of data with consideration to repurposing barrier-related contracts. The Secretary of Defense and the Secretary of Homeland Security, in consultation with a range of executive departments and agencies were to develop a plan for redirection of funds concerning the southern border wall, as appropriate and consistent with applicable law. The process of developing the plan shall include consideration of terminating or repurposing contracts with private contractors engaged in wall construction, while providing for the expenditure of any funds that the Congress expressly appropriated for wall construction, consistent with their appropriated purpose.70 Questions Raised by Recent Border Barrier Funding The Role of Congress v. the Administration in Funding Section 4 of E.O. 13767, “Physical Security of the Southern Border of the United States,” focused almost entirely on the construction of “a physical wall” on the U.S.-Mexico border as a means of 68 See discussion in Davis, John, “Walls Work: Historic successes point the way toward border barriers of the future,” https://www.cbp.gov/frontline/border-security; and U.S. Customs and Border Protection, “Border Wall System: Frequently Asked Questions,” https://www.cbp.gov/border-security/border-wall/border-wall-system-frequently-asked-questions (as downloaded on January 10, 2020). 69 Proclamation 10142, “Termination of Emergency With Respect to the Southern Border of the United States and Redirection of Funds Diverted to Border Wall Construction,” 86 Federal Register 7225-7227, January 27, 2021. 70 Proclamation 10142. Congressional Research Service 18 DHS Border Barrier Funding Through FY2021 obtaining operational control of the nearly 2,000-mile border.71 To briefly recap the funding that was provided by Congress in response to the Trump Administration’s initiative, the $5.84 billion in appropriations provided by Congress to CBP for border barrier planning and construction for FY2017-FY2021 more than doubled the amount provided for those purposes in the BSFIT account for FY2007 to FY2016. Of the $5.84 billion • $1.04 billion was specifically directed to barrier replacement projects; • $2.02 billion was specifically directed to construction needs in the Rio Grande Valley Sector; and • $2.78 billion was provided for planning and construction of border barriers without specific direction in regards to location or whether the funding was for barrier replacement or construction of additional miles of barriers. Despite the historically high volume of resources provided, the Trump Administration took unprecedented steps—noted in “Border Barrier Funding Outside the Appropriations Process” above—to redirect additional federal funds to this purpose, making almost $10 billion available to the Department of Defense to undertake a task for which the primary authority lay with CBP. • In a situation where Congress has assessed the Administration’s case for funding a given initiative, and chosen to only provide limited funding, how can Congress best maintain its Constitutional “power of the purse” when an Administration chooses to disregard appropriations law precedents and practices? • Conversely, when Congress has appropriated funds for a given purpose, and an Administration—new or incumbent—chooses to change the policy that Congress has specifically funded, what avenues should be available for Congress to either provide flexibility on the use of those funds, or insist on its position and ensure the funding is used as directed? The Role of Congress v. the Administration in Execution and Oversight Congress has at times been challenged in obtaining information on border barrier construction for use in public debate. Generally, the Trump Administration (and the Biden Administration thereafter), in discussions about border barriers, relied on the U.S. Border Patrol Impedance and Denial Prioritization Strategy, which includes a list of projects for barrier construction. This is not a document available for use in public debate, as it is a report to a specific committee of Congress, and it contents, while not classified information, are restricted from public circulation.72 There were no known authoritative cost estimates for the total construction or operation and maintenance costs of these projects if they were all completed, or publicly available assessments of how completion of various projects might affect CBP’s operational costs. As noted above, the GAO reported in 2018 that CBP’s methodology for prioritizing border barrier deployments did not use cost estimates that included analysis of the costs associated with deploying barriers in 71 Executive Order 13767, “Border Security and Immigration Enforcement Improvements,” 82 Federal Register 8793-8797, January 30, 2017. 72 The Strategy is part of a report to a specific committee of Congress, and is designated Law Enforcement Sensitive. This designation indicates that the information is sensitive (but unclassified) and for that reason, DHS, by guidance, restricts circulation of it beyond those with a “need-to-know” to perform official governmental duties. Congressional Research Service 19 DHS Border Barrier Funding Through FY2021 each location, such as those driven by topography, land ownership, and other factors.73 Furthermore, GAO reported in 2016 that the border barriers’ contributions to CBP goals were not being adequately measured.74 As long as this issue is a matter of congressional debate, Congress may wish to obtain additional information and explore the following questions in assessing border barrier funding proposals: • What are the projected operation and maintenance costs for the existing southwest border barriers? How will those change with the continuing maintenance needs for replacements and upgrades, or new construction of barriers? • How is CBP prioritizing further border wall system work? What level of transparency is possible without compromising operational effectiveness and efficiency? • What are the projected land acquisition and construction costs of CBP’s remaining top priority border barrier projects, based on unique topography, land ownership, and strategic intent of the projects? What steps is CBP taking to control the growth of those costs? Who within the Administration is providing oversight of how these funds are used, and are they reporting their findings to Congress? • Are existing barriers and completed improvements having measurable impacts on illegal entries into the U.S. and smuggling of contraband? How are CBP and other stakeholders making their assessments? Is CBP getting its desired tactical or strategic outcomes? • Are the operational benefits worth the financial and operational costs, or are there more efficient ways to achieve the desired tactical or strategic outcomes? Author Information William L. Painter Audrey Singer Specialist in Homeland Security and Appropriations Specialist in Immigration Policy 73 GAO-18-614. 74 GAO-17-331. Congressional Research Service 20 DHS Border Barrier Funding Through FY2021 Disclaimer This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you wish to copy or otherwise use copyrighted material. Congressional Research Service R45888 · VERSION 10 · UPDATED 21 not under DHS control.

Figure A-1. Annual and Cumulative Miles of Primary Barriers and Year Constructed, Southwest Border, 1990-2018

Source: inewsource/KPBS, America's Wall, https://www.kpbs.org/news/2017/nov/13/americas-wall/.

Notes: Construction data are in calendar years for fencing that existed as of the date of the project. Primary barriers include pedestrian and vehicle fencing combined. The data were provided by Customs and Border Protection via a Freedom of Information Act request to inewsource/KPBS to create the interactive, "America's Wall." The files provided to inewsource/KPBS included digital map files of sections of barriers, and information such as type of fencing, year construction was completed, and the location in which it was built. The length of each section of fencing was recorded in an "internal unit"—something other than feet or meters—which required inewsource/KPBS to use a mapping software to extract the length in feet for each section of wall. CRS could not verify years prior to 1990. For more information on the methodology used, see https://www.kpbs.org/news/2017/nov/13/americas-wall-how-we-crunched-numbers/.

Office of the Historian, Milestones in the History of U.S. Foreign Relations, U.S. Department of State, Gadsden Purchase 1853-1854, https://history.state.gov/milestones/1830-1860/gadsden-purchase and International Boundary; and Water Commission website, "Treaties Between the U.S. and Mexico," https://www.ibwc.gov/Treaties_Minutes/treaties.html, as downloaded on July 8, 2019. (22 U.S.C. §277d–34)

Act of May 28, 1924 (43 Stat. 240).

Department of Homeland Security, U.S. Customs and Border Protection, "Border Patrol History," https://www.cbp.gov/border-security/along-us-borders/history.

Immigration Act of May 26, 1924 (43 Stat. 153).

Meyers, Deborah Waller, "From Horseback to High-Tech: U.S. Border Enforcement," Migration Policy Institute, November 2005, p. 2, https://www.migrationpolicy.org/sites/default/files/publications/Insight-7-Meyers.pdf.

See Douglas S. Massey, Jorge Durand, and Nolan J. Malone, Beyond Smoke and Mirrors: Mexican Migration in an Era of Economic Integration (New York: Russell Sage Foundation, 2003); and Kitty Calavita, Inside the State: The Bracero Program, Immigration, and the INS (1992) (New York: Routledge, 1992).

Meyers, pp. 2-4.

The barrier, originally seven miles long, was increased to 14 miles in 1993 by the U.S. Army Corps of Engineers, extending it into the Pacific Ocean. Meyers, p. 5.

U.S. Government Accountability Office, INS' Southwest Border Strategy: Resource and Impact Issues Remain After Seven Years, GAO-01-842, August 2, 2001, p. 1, https://www.gao.gov/products/GAO-01-842.

U.S. Border Patrol, Border Patrol Strategic Plan: 1994 and Beyond, July 1994, p. 6, https://www.hsdl.org/?view&did=721845.

CRS Report R43975, Barriers Along the U.S. Borders: Key Authorities and Requirements, by Michael John Garcia.

The authorities granted by this section now rest with the Secretary of DHS. See P.L. 107-296, §§102(a), 441, 1512(d), and 1517 (references to the Attorney General or Commissioner in statute and regulations are deemed to refer to the Secretary).

P.L. 104-208, Division C, §102(a) and (b); 8 U.S.C. §1103 note.

CBP was established pursuant to reorganization authority provided in Sec. 1502 of the Homeland Security Act of 2002 (P.L. 107-296). An initial reorganization plan, altering the structure outlined in P.L. 107-296, was submitted on November 25, 2002, and was then modified on January 30, 2003, after Bush Administration consultations with Secretary of Homeland Security-designate Tom Ridge. The reorganization as modified restructured the Customs Service and the Bureau of Border Security into the Bureau of Customs and Border Protection. Permanent statutory authorization was provided in P.L. 114-125 (130 Stat. 122), 6 U.S.C. §211.

119 Stat. 306. Also see, CRS Legal Sidebar LSB10111, District Court Decision May Help Pave the Way for Trump Administration's Border Wall Plans, by Adam Vann.

See Sen. Arlen Specter, Sen. Patrick Leahy, Sen. John Kerry, and Sen. John McCain, "Secure Fence Act of 2006—Resumed," remarks in the Senate, Congressional Record, vol. 152 (September 29, 2006), pp. S10609-S10613.

In its first two annual appropriations acts, CBP's construction account was dedicated to the Border Patrol, but little detailed information was provided regarding specific projects. The appropriations committees requested a detailed priority list of projects in the FY2004 conference report (H.Rept. 108-280, p. 31), and noted in FY2005 that it had not received it (H.Rept. 108-774, p. 43). The account received slightly more than $90 million in each of its first two years—funding the account at the requested level—with no special direction provided on border barriers.

H.Rept. 109-241. $35 million was also provided for unspecified tactical infrastructure in CBP's Tucson Sector. Information on Border Patrol sectors can be found at https://www.cbp.gov/border-security/along-us-borders/border-patrol-sectors, and a map is available in GAO-18-614 (https://www.gao.gov/products/GAO-18-614), on p. 8.

121 Stat. 2090.

121 Stat. 2091.

H.Rept. 109-699, pp. 129-130.

PPAs—short for "Programs, Projects, or Activities"—are subdivisions of appropriations. See following text box.

H.Rept. 109-699, p. 130. For a detailed discussion of how the 2008 Appropriations Act amended IIRIRA and modified fencing requirements, see CRS Report R43975, Barriers Along the U.S. Borders: Key Authorities and Requirements, by Michael John Garcia, beginning on p. 9 and Appendix A for current language.

For detailed information on the shift to the CAS, see CRS Report R44621, Department of Homeland Security Appropriations: FY2017, coordinated by William L. Painter.

Email to CRS from CBP Office of Congressional Affairs, November 26, 2018.

CBP, in contracting documents, includes a broad range of things in tactical infrastructure, such as roads, pedestrian and vehicle fencing, lighting, low-water crossings, bridges, drainage structures, marine ramps, and other supporting structures. It does not include ports of entry.

Executive Order 13767, "Border Security and Immigration Enforcement Improvements," 82 Federal Register 8793-8797, January 30, 2017.

Data on FY2016 enacted appropriations transcribed into the new DHS budget structure were available in the detail table at the end of the explanatory statement accompanying the FY2017 Omnibus Appropriations Act, which included the Department of Homeland Security Appropriations Act, 2017 as Division F. See U.S. Congress, House Committee on Appropriations, Consolidated Appropriations Act, 2017, committee print, 115^th Cong., 1^st sess., H.Prt. 115-25-289 (Washington: GPO, 2017), pp. 973-976 for CBP's appropriations in the CAS structure.

U.S. Customs and Border Protection email to CRS, November 26, 2018. CBP frequently relies on the U.S. Army Corps of Engineers for real estate services and contracting out construction of border barriers to private companies. For details see CRS In Focus IF11224, Army Corps of Engineers and U.S. Southern Border Barriers, by Nicole T. Carter.

CBP reports that $341 million of FY2017 TI Acquisition funding was for Wall Program requirements, but funding was provided to the TI program, because the Wall Program had yet to be established when appropriations were provided.

Letter from Donald J. Trump, President of the United States, to The Honorable Paul Ryan, Speaker of the House of Representatives, March 16, 2017, p. 3 of the enclosure, https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/budget/fy2018/amendment_03_16_18.pdf.

P.L. 115-31, 131 Stat. 433-434.

House Committee on Appropriations, "Fiscal Year 2018 Homeland Security Bill," press release, March 21, 2018, https://appropriations.house.gov/uploadedfiles/03.21.18_fy18_omnibus_-_homeland_security_-_summary.pdf.

P.L. 115-141, Division F, Sec. 230(a)(1)-(5).

Ibid.

Department of Homeland Security, U.S. Customs and Border Protection Budget Overview: Fiscal Year 2019 Congressional Justification, Washington, DC, p. CBP-16, https://www.dhs.gov/publication/congressional-budget-justification-fy-2019.

Jennifer Shutt, "Trump, House GOP Dig In on Spending Bills, Border Wall," CQ News, November 27, 2018, https://plus.cq.com/doc/news-5420430?11.

Letter from Russell T. Vought, Acting Director, Office of Management and Budget, to Sen. Richard Shelby, Chairman, Committee on Appropriations, U.S. Senate, January 6, 2019, https://www.whitehouse.gov/wp-content/uploads/2019/01/Final-Shelby-1-6-19.pdf.

P.L. 116-6.

Treasury Forfeiture Fund assets have been made available to support DHS missions in the past, although not on this scale—CBP does not require an emergency designation to receive or use these funds in support of its law enforcement missions.

Notice re Treasury Forfeiture Fund, State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG, Exhibit A: Declaration of Loren Flossman, January 8, 2020.

For additional information on this authority, see CRS Insight IN11052, The Defense Department and 10 U.S.C. 284: Legislative Origins and Funding Questions, by Liana W. Rosen.

Standard CBP practice for construction of border barriers is that the real estate and construction contracting has been handled by the U.S. Army Corps of Engineers, with funding provided by CBP by transfer under the Economy Act. For more details, see CRS In Focus IF11224, Army Corps of Engineers and U.S. Southern Border Barriers, by Nicole T. Carter.

Order Granting in Part and Denying in Part Plaintiffs' Motion for Preliminary Injunction at 8, Sierra Club v. Trump, Case No. 4:19-cv-00892-HSG (N.D. Cal. June 28, 2019), [ECF No. 185], https://www.crs.gov/products/Documents/8_Permanent_Injunction_Order/pdf. For additional information on the injunction, see CRS Legal Sidebar LSB10310, Supreme Court Stays Injunction That Had Blocked a Portion of the Administration's Border Wall Funding, by Edward C. Liu and Benjamin Hayes.

CRS Insight IN11017, Military Construction Funding in the Event of a National Emergency, by Michael J. Vassalotti and Brendan W. McGarry.

Memorandum from Mark T. Esper, Secretary of Defense, to Acting Under Secretary of Defense (Comptroller)/Chief Financial Officer, "Military Construction Necessary to Support the Use of the Armed Forces in Addressing the National Emergency at the Southern Border," September 3, 2019.

Ibid.

This description is drawn from the FY2019 CBP budget justification, which was written without knowledge of the resources provided for FY2019 or pursuant to the emergency declaration. Should the FY2020 funding be used to support projects not funded in FY2019, the mileage constructed may differ.

H.R. 3931.

H.R. 3931, Sec. 536.

P.L. 116-93, Div. D, §209(a)(1).

P.L. 116-93, Div. D, §209(b)(1)(B).

P.L. 116-93, Div. D, §209(b)(2).

Department of Homeland Security, U.S. Customs and Border Protection Procurement, Construction and Improvements: Fiscal Year 2020 Congressional Justification, Washington, DC, p. CBP-PC&I-20, https://www.dhs.gov/publication/congressional-budget-justification-fy-2020.

The remaining $6.1 billion in FY2019 funding repurposed to border barrier construction from the Department of Defense remains under that department's jurisdiction and is beyond the scope of this report. For further details, see CRS Report R45937, Military Funding for Southwest Border Barriers, by Christopher T. Mann.

There is dispute, as referenced by Acting DHS Secretary Wolf in his remarks of January 10, 2020, in Yuma, AZ, over the use of "new" and "replacement" in discussions of barriers or miles of barriers. In this report, "new" barriers are those that contribute additional miles to the total count of the primary layer of fencing where no human-made barrier existed. "Replacement" refers to newly constructed barriers that either replace or update existing fencing of an earlier vintage, or upgrade fencing designed to prevent the entry of vehicles with fencing designed to prevent the entry of people.

See discussion in Davis, John, "Walls Work: Historic Successes Point the Way Toward Border Barriers of the Future," https://www.cbp.gov/frontline/border-security; and U.S. Customs and Border Protection, "Border Wall System: Frequently Asked Questions," https://www.cbp.gov/border-security/border-wall/border-wall-system-frequently-asked-questions (as downloaded on January 10, 2020).

Department of Homeland Security, "Arizona Officials Join Acting Secretary Wolf to Mark Completion of 100 Miles of New Border Wall System, Highlight Progress Addressing Border Crisis," press release, January 10, 2020, https://www.dhs.gov/news/2020/01/10/arizona-officials-join-acting-secretary-wolf-mark-completion-100-miles-new-border.

In the FY2020 Budget Justification, DHS defined the Border Wall System as:

Border wall system construction includes a combination of various types of infrastructure such as an internally hardened steel-bollard barrier, all-weather roads, lighting, enforcement cameras and other related technology. Investment in this infrastructure supports USBP's [the U.S. Border Patrol's] operational requirement for impedance and denial. The FY2020 funding includes real estate and environmental planning, land acquisition, wall system design, construction and construction oversight.

See Department of Homeland Security, U.S. Customs and Border Protection, Budget Overview, Fiscal Year 2020, Congressional Justification, http://www.dhs.gov/sites/default/files/publications/19_0318_MGMT_CBJ-Customs-Border-Protection_0.pdf.

See Miroff, Nick, "Trump Administration Plans to Announce 100-Mile Mark on Border Wall Construction," Washington Post, January 9, 2020.

U.S. Government Accountability Office, Southwest Border Security: Additional Actions Needed to Better Assess Fencing's Contributions to Operations and Provide Guidance for Identifying Capability Gaps, GAO-17-331, February 17, 2017, https://www.gao.gov/assets/690/682838.pdf. (Redacted version of original law enforcement-sensitive 2016 report.)

U.S. Government Accountability Office, Southwest Border Security: CBP Is Evaluating Designs and Locations for Border Barriers but Is Proceeding Without Key Information, GAO-18-614, July 30, 2018, https://www.gao.gov/products/GAO-18-614.

U.S. Government Accountability Office, Southwest Border Security: Additional Actions Needed to Better Assess Fencing's Contributions to Operations and Provide Guidance for Identifying Capability Gaps, 17-331, February 2017, Hereinafter, "GAO 2017."

The figure of 653 primary miles of fencing is derived from inewsource/KPBS's data source (described below) and differs minimally from GAO's 654 miles. See GAO 2017, p. 6.

GAO 2017; see pp. 11-12 for images of barrier types and materials for pedestrian/vehicle and modern/legacy fencing.

CBP reports that as of October 2018, approximately 654 miles of barriers existed on the southwest border. See DHS, U.S. Border Patrol, "Mileage of Pedestrian and Vehicle Barrier by State," press release, 2018, https://www.cbp.gov/sites/default/files/assets/documents/2019-Mar/FY18%20Border%20Patrol%20Barrier%20Totals%20v3.pdf.

inewsource/KPBS, "America's Wall," https://www.kpbs.org/news/2017/nov/13/americas-wall/.

CRS Report R43975, Barriers Along the U.S. Borders: Key Authorities and Requirements, by Michael John Garcia, p. 4.