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Miriam Valverde
By Miriam Valverde January 17, 2017

Rep. Luke Messer is correct, 2006 act allows the construction of a border wall

With Donald Trump days away from taking the presidential oath, Republicans have been examining ways to help him meet his campaign promise of a wall along the U.S.-Mexico border.

Critics have called out the proposed wall as a tremendous expense. But Rep. Luke Messer, R-Ind., has said the Secure Fence Act of 2006 already supports construction of the border wall.

"By funding the authorization that's already happened a decade ago, we could start the process of meeting Mr. Trump's campaign pledge to secure the border," Messer said in a CNN story published Jan. 6.

We wondered if the 2006 law gives Trump the green light to get started on his immigration promise. Experts told us Messer’s claim is on point.

A 2006 law

The Secure Fence Act of 2006 was signed into law by Republican President George W. Bush.

The act allowed the Department of Homeland Security to "take all actions the secretary determines necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States."

Those actions include the use of personnel, technology and physical infrastructure enhancements, the law says.

That authorization of physical infrastructure enhancements could include a fence, wall, barrier, et cetera, said Molly Gillaspie, a spokeswoman for Messer.

The 2006 law defined "operational control" as the prevention of all unlawful entries into the country, "including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband."

It also directed the department to build two-layered fencing along five stretches of the border, amounting to about 850 miles, according to a 2009 Congressional Research Service report. That double layer requirement was revised by the Consolidated Appropriations Act, 2008, the report said.

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The modification directed the Homeland Security secretary to construct reinforced fencing "along not less than 700 miles of the southwest border where fencing would be most practical and effective and provide for the installation of additional physical barriers, roads, lighting, cameras, and sensors to gain operational control of the southwest border."

Currently, there are 702 miles of fencing along the U.S.-Mexico border, according to U.S. Customs and Border Protection. That includes 652 miles of primary fencing, 36 miles of double-layered fencing and 14 miles of tertiary fencing, according to the agency.

In a post-election interview Nov. 13, Trump told CBS's Lesley Stahl he would accept fencing "for certain areas … but certain areas, a wall is more appropriate." In a press conference Jan. 11, Trump told reporters, "It’s not a fence. It’s a wall. You just misreported it. We’re going to build a wall."

The Secure Fence Act of 2006 gives the Department of Homeland Security some discretion on how they choose to secure the border and the Consolidated Appropriations Act, 2008 gave the department greater flexibility, said Christopher Wilson, deputy director of the Mexico Institute at the Wilson Center, a nonpartisan think tank researching global issues.

"It is our belief that U.S. Customs and Border Protection can build additional barriers along the U.S.-Mexico border — whether you call these ‘walls,’ fences or other sorts of barriers — in the regular course of its work and without requiring additional authorization from Congress," said Michelle Mittelstadt, director of communications and public affairs at the Migration Policy Institute, a nonpartisan think tank studying migration policies and trends.

A limitation for the construction of the southwest border wall would rise from Congress’ willingness to pay for it, not from needed authorization, said Edward Alden, an expert on border security and a senior fellow at the Council on Foreign Relations, a nonpartisan think tank.

The REAL ID Act of 2005, passed by Congress, even gave the Homeland Security secretary the authority to "waive all legal requirements" that may get in the way of constructing border barriers, Alden noted.

That authority was used in 2008 by then Secretary of Homeland Security Michael Chertoff to waive environmental reviews.

Our ruling

Messer said, "By funding the authorization that’s already happened a decade ago (in the Secure Fence Act of 2006), we could start the process of meeting Mr. Trump’s campaign pledge to secure the border."

The 2006 law authorized the Department of Homeland Security to "take all actions the Secretary determines necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States."

Those actions include the use of personnel, technology and physical infrastructure enhancements. Experts told us that what’s now needed from Congress to build a wall are funds, not additional permission.

Messer’s claim is accurate, we rate it True.

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"By funding the authorization that’s already happened a decade ago (in the Secure Fence Act of 2006), we could start the process of meeting Mr. Trump’s campaign pledge to secure the border."
in a CNN story
Thursday, January 5, 2017

Our Sources

CNN, Trump asking Congress, not Mexico, to pay for border wall, Jan. 6, 2017

CBS News, Trump's wall to include fencing?, Nov. 13, 2016

The New York Times, Donald Trump’s News Conference: Full Transcript and Video, Jan. 11, 2017

The White House, Fact Sheet: The Secure Fence Act of 2006, Oct. 26, 2006

The New York Times, Government Issues Waiver for Fencing Along Border, April 2, 2008

U.S. Government Publishing Office, Consolidated Appropriations Act, 2008

U.S. Government Publishing Office, Secure Fence Act of 2006

U.S. Government Publishing Office, REAL ID Act of 2005

Congressional Research Service, Barriers Along the U.S. Borders: Key Authorities and Requirements, April 8, 2015

Congressional Research Service, Barriers Along the U.S. Borders: Key Authorities and Requirements, November 18, 2016

PolitiFact, Obama says the border fence is 'now basically complete', May 16, 2011

PolitiFact, Trump says they were going to build a wall in '06, but environmental rules got in the way, Aug. 29, 2016

PolitiFact, Cruz falsely claims U.S. law requires double fencing on border, Dec. 29, 2015

Phone interview, Edward Alden, an expert on border security and a senior fellow at the Council on Foreign Relations, Jan. 10, 20170

Phone interview,  Christopher Wilson, deputy director of the Mexico Institute at the Woodrow Wilson, Jan. 9, 2017

Email interview, Molly Gillaspie, spokeswoman for Rep. Luke Messer, Jan. 9, 2017

Email interview, Michelle Mittelstadt, director of communications and public affairs at the Migration Policy Institute, Jan. 9, 2017

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Rep. Luke Messer is correct, 2006 act allows the construction of a border wall

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