How Antonin Scalia Could Trump the Wall

By: Gage Smythe


On January 25, 2017, President Trump signed an Executive Order titled “Border Security and Immigration Enforcement Improvements.”[1] The Executive Order invoked the authority of the presidency under U.S. immigration law, including the Immigration and Nationality Act,[2] the Secure Fence Act of 2006,[3] and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.[4] The overarching purpose of the order is to “deploy all lawful means to secure the Nation’s southern border, to prevent further illegal immigration into the United States, and to repatriate illegal aliens swiftly, consistently, and humanely.”[5] This order was an initial step toward fulfilling one of the most popular promises of the Trump campaign, to “build a great, great wall on our southern border,” and “have Mexico pay for that wall.”[6] The order directed the executive branch to begin “immediate construction of a physical wall on the southern border.”[7]

One of the primary authorities the president cited in support of his action was the Secure Fence Act of 2006,[8] which attempted to achieve “operational control on the border” through “systematic surveillance” and “physical infrastructure enhancements.”[9] It enabled the Secretary of Homeland Security to take all actions that are “necessary and appropriate” to achieve and maintain operational control over the southern border, namely through building fences.[10] The reinforced fencing and security improvements in the Secure Fence Act are limited to certain portions of the southern border enumerated in the law.[11] Trump’s proposed physical wall would extend coverage to the entirety of the southern border using “appropriate materials and technology to most effectively achieve complete operational control of the southern border.”[12]

Trump’s plan to use the Secure Fence Act as the basis for his border wall could hit a snag based on the “necessary”and “appropriate” language used in the law and prior cases construing that language. A 2015 Supreme Court case, Michigan v. EPA,[13] analyzed the same words “appropriate” and “necessary” in The Clean Air Act-though in an order opposite to the language found in Secure Fence Act. Ultimately, the Court held that the Environmental Protection Agency did not reasonably consider the cost of their actions when deciding whether it was “appropriate and necessary” to regulate power plants.[14] In the Scalia-penned opinion, the late justice deemed no regulation “‘appropriate’ if it does significantly more harm than good.”[15] The identical words in the Secure Fence Act could cause problems for the Trump administration if it does not consider the costs and benefits of the proposed wall when deciding whether the new infrastructure is both appropriate and necessary.

“Appropriate and Necessary” Explained by Justice Scalia

The Clean Air Act imposed a slew of regulatory programs aimed at limiting air pollution emanating from “stationary” and “moving” sources.[16] These sources included refineries, factories, cars, airplanes, and other similar pollution-producers.[17] For fossil-fuel-fired power plants, a separate scheme was implemented to determine the advantageousness of potential regulations.[18] The EPA was required to study the “hazards to public health reasonably anticipated to occur as a result of emissions by [power plants] of [hazardous air pollutants] after imposition of the requirements of this chapter.”[19] Only after the study was finished could the EPA “regulate [power plants] under this section, if the Administrator finds such regulation is appropriate and necessary after considering the results of the study . . . .”[20]

The EPA finished the requisite study in 1998 and decided in 2000 that regulating power plants was “appropriate and necessary.”[21] It based its decision of appropriateness on findings that power plants emitted mercury and other hazardous pollutants that were dangerous to human health and the environment, and that certain controls would effectively reduce the hazardous emissions.[22] It found the regulations “necessary” because the Clean Air Act failed to eliminate these risks without further regulations on power plants.[23] They also concluded that the costs of regulating power plants “should not be considered” when deciding whether or not to regulate under § 7412.[24] Those costs, however, were significant. The estimated cost to power plants was $9.6 billion every year, while the benefits were estimated to be only $4 to $6 million.[25] Totaling a cost of 1,600 to 2,400 times greater than the benefits that could be realized.[26] Other ancillary benefits might have increased the value of the regulations, but the EPA did not consider these in their appropriate-and-necessary finding.[27]

Justice Scalia wrote that the EPA exceeded its operational bounds “when it read § 7412(n)(1) to mean that it could ignore cost when deciding whether to regulate power plants.”[28] A natural reading of “appropriate and necessary” requires agencies to at least consider costs.[29] Considering costs reflects the regulatory tenet that reasonable administration requires an agency to consider the advantages and disadvantages of a proposed regulation.[30] This makes it unreasonable for an agency to completely ignore the cost-benefit analysis implicit in an appropriate-and-necessary instruction.[31] Thus, in Scalia’s words, “[n]o regulation is ‘appropriate’ if it does significantly more harm than good.”[32]

President Trump’s Proposed Border Wall

 It is against this statutory backdrop that President Trump’s proposed justification for the wall becomes tenuous and ripe for challenges. The cost of building a wall along the southern wall would, by any estimate, be incredibly expensive. At the low end of the president’s own estimates, the wall will cost at least $10 to $12 billion.[33] The Senate Majority Leader of President Trump’s own party has estimated it could cost as much as $15 billion.[34] However, both estimates could fall on the low end of the cost estimate spectrum. A recently-leaked Homeland Security Department report put the department’s own anticipated cost of building the wall at $21.6 billion.[35] Even in the case that the wall only ends up costing the $12 billion President Trump originally suggested, there are the additional costs of staffing, arming, and maintaining all 1,250 miles of the wall.[36] Notwithstanding the president’s campaign promise to somehow force Mexico to pay for the wall, we can assume that at least initially, the costs will be borne by the United States.[37]

The benefits of building and enforcing the southern border with a physical wall are difficult to quantify. The President’s executive order cited a “recent surge of illegal immigration at the southern border with Mexico” that “has placed a significant strain on Federal resources and overwhelmed agencies charged with border security and immigration enforcement . . . .”[38] President Trump cited no official findings to back up his claim that there has been a recent surge of illegal immigration into the United States from Mexico.[39] On the contrary, the Pew Research Center’s recent 2016 study found that between 2009 and 2014, “most states saw no statistically significant change in the size of their unauthorized immigrant populations . . . .”[40] In seven states, the unauthorized immigrant population had actually declined.[41] While in seven states the unauthorized immigrant population had risen, only one of those states could trace the rise to unauthorized immigrants from Mexico.[42]

Even if President Trump did build the wall, there is no evidence to suggest that the wall would provide a benefit in the form of decreased illegal immigration. The Cato Institute, a libertarian think tank, suggests that while a wall could address some of the pitfalls of the currently-in-place fencing, it would not alleviate the problems entirely and may even create new ones.[43] For example, while a taller wall may slow down those trying to get into the U.S., it would likely not completely deter people.[44] President Trump claimed at a rally that “there’s no ladder going over [that wall].”[45] If they were even able to get on top of the wall, there would be “no way to get down,” he said. After some thought, he admitted “[m]aybe a rope.”[46]

Would-be border crossers could also just continue their current practice of tunneling beneath the border. For years, the Mexican drug cartels have simply created underground tunnels to smuggle drugs into the United States.[47] Border patrol agents have made a concerted effort to find and fill these tunnels, but the cartels stay ahead of agents many times and even if they only get one use out of a single tunnel, they still consider it a success.[48] Until further technologies are developed to make it possible to find and detect tunnels before they are finished, tunnels will remain problematic and require more creative solutions than a simple concrete wall. Until then, border agents would have to confront the problem while also dealing with the new opaque wall preventing them from seeing what those on the Mexican side of the wall are doing. The inability to keep tabs on the other side would keep them from adequately assessing and preparing for potential incidents.

There are other concerns about the benefits of the wall that directly address the economic reality of excluding millions of unauthorized immigrants. First, unauthorized immigrants pay billions in tax dollars to the United States government.[49] According to the National Immigration Law Center, unauthorized immigrants paid $11.2 billion in taxes in 2010.[50] A report published by the Council on Foreign Relations found that unauthorized immigrants increase the productivity of certain job sectors like agriculture.[51] By increasing the labor supply to perishable fruits and vegetables, each acre of land is able to yield more output.[52] This increased productivity leads to larger incomes for United States business owners and results in an annual surplus equal to about .2% of GDP in 2004.[53] The Cato Institute studied the effect of unauthorized immigration on the GDP and found that the GDP would decline by about 1.5%, more than $2.6 trillion over the course of a decade, if mass deportation and the elimination of unauthorized immigration were realized.[54]

The official cost of building the wall has not yet been articulated and likely will not be certified until the wall is completely constructed. Judging by the admissions of then-candidate Trump and the recent report from the Department of Homeland Security, the wall will likely cost at least somewhere between $12 and $22 billion, if not more. The benefits of building such a wall are best left to the Department of Homeland Security when they assess the costs and benefits of building the wall. However, it is possible to look at the main proposed benefit of the wall, halting unauthorized immigration and creating a secure southern border, and see that the benefits derived will have to be substantial to even come close to $22 billion price tag. The effects of sealing the southern border certainly might have some ideological or national security benefit, but even if those benefits are quantifiable and seen as equal in substantiality to the cost of the wall itself, a wall might be an ineffective means for achieving those ends.

Conclusion

President Trump has authorized the building of the wall under the Secure Fence Act of 2006, thus the Department of Homeland Security will be limited to actions that “the Secretary determines appropriate and necessary to achieve and maintain operational control over the entire international land and maritime borders of the United States….”[55] Justice Scalia explained that this means an agency cannot ignore the requisite costs of their proposed action when determining whether that action is “appropriate and necessary” for achieving the goals of their action.[56] President Trump’s executive order makes no mention of a period of study to determine if a wall would be the most cost-effective means for achieving security along the southern border.[57] The order directs the agency to build a physical wall using “all lawful means to secure the Nation’s southern border…”[58]

For the Department of Homeland Security to adequately follow the law under the Secure Fence Act, it will need to consider the cost and benefits of the wall when determining if the wall is “appropriate and necessary.” Based on the report they recently leaked, they have already determined the wall will cost at least $22 billion. The benefits are ideological at best and are detrimental to the United States’ economy at worst. The potential loss of tax revenue and diminishing GDP due to a less productive work force should also be considered in the DHS’s analysis. Taking all of this into consideration, there are probably less costly means of achieving border security. Under Justice Scalia’s interpretation of what is “appropriate and necessary,” this wall might do “significantly more harm than good” and is thus probably not appropriate.[59]

Any challenge to the President’s plan will have to wait until there are more concrete moves to begin construction on the wall and an actual injury can be pled by a proper plaintiff in court. A potential plaintiff must have suffered a personal and articulable injury in order to bring suit challenging the wall’s construction, but should suit be brought, there is a very strong argument for the inappropriate and unnecessary nature of the wall. For farmers and states in the southwest United States, it is just a matter of time before the wall becomes a reality and only a matter of time after that before that reality requires them to take action in court. When it does, the words of Antonin Scalia could come back to plague the president who once described the late justice as “one of the best of all time.”[60]


[1] Exec. Order No. 13767, 82 Fed. Reg. 8793 (Jan. 25, 2017).

[2] 8 U.S.C. § 1101.

[3] Secure Fence Act of 2006, Pub. L. No. 109-367, 120 Stat. 2638.

[4] Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009.

[5] Exec. Order No. 13767, supra note 1.

[6] Donald J. Trump, Candidate for President of the United States, Announcement Speech (June 16, 2015), available at http://time.com/3923128/donald-trump-announcement-speech/.

[7] Id.

[8] Secure Fence Act, supra note 3.

[9] Id.

[10] Id.

[11] Id.

[12] Exec. Order No. 13767, supra note 1.

[13] 135 S. Ct. 2699 (2015).

[14] Michigan, 135 S. Ct. at 2711.

[15] Id. at 2707.

[16] Id. at 2704.

[17] Id.

[18] Id.

[19] 42 U.S.C.A § 7412(n)(1)(A).

[20] Id.

[21] Michigan, 135 S. Ct. at 2705.

[22] Id. at 2705.

[23] Id.

[24] Id.

[25] Id. at 2706.

[26] Id.

[27] Michigan, 135 S. Ct. at 2706.

[28] Id. at 2707.

[29] Id.

[30] Id.

[31] Id. at 2708.

[32] Id. at 2707.

[33] Donald Trump’s Mexico Wall: Who is Going to Pay for It?, BBC News (Feb. 6, 2017), http://www.bbc.com/news/world-us-canada-37243269.

[34] Id.                                  

[35] Julia Edwards Ainsley, Trump Border ‘Wall’ to Cost $21.6 Billion, Take 3.5 Years to Build: Internal Report, Reuters (Feb. 9, 2017), http://www.reuters.com/article/us-usa-trump-immigration-wall-exclusive-idUSKBN15O2ZN.

[36] Id.

[37] Trump Announcement Speech, supra note 6.

[38] Exec. Order No. 13767, supra note 1.

[39] Id.

[40] Jeffrey S. Passel & D’Vera Cohn, Overall Number of U.S. Unauthorized Immigrants Holds Steady Since 2009, Pew Res. Ctr: Hisp. Trends (Sept. 20, 2016), http://www.pewhispanic.org/2016/09/20/overall-number-of-u-s-unauthorized-immigrants-holds-steady-since-2009/

[41] Id.

[42] Id.

[43] David Bier, A Wall Is an Impractical, Expensive, and Ineffective Border Plan, Cato Ins. (Nov. 28, 2016), https://www.cato.org/blog/border-wall-impractical-expensive-ineffective-plan.

[44] Id.

[45] Ian Schwartz, Trump on Border: Maybe They’ll Call It “The Trump Wall,” Real Clear Pol. (Aug. 19, 2015), http://www.realclearpolitics.com/video/2015/08/19/trump_ on_border_maybe_theyll_call_it_the_trump_wall.html.

[46] Id.

[47] Ron Nixon, As Donald Trump Calls for Wall on Mexican Border, Smugglers Dig Tunnels, N.Y. Times (Sept. 1, 2016), https://www.nytimes.com/2016/09/02/us/us-mexico-border-wall-tunnels.html?_r=1.

[48] Id.

[49] Jolene Ivey & Victor Ramirez, Immigrants and Taxes, Nat’l Immigr. L. Center https://www.nilc.org/wp-content/uploads/2015/11/MD-2013-Talking-Points-Taxes.pdf.

[50] Id.

[51] Gordon Hanson, The Economic Logic of Illegal Immigration, Council on Foreign Relations (2007), http://www.cfr.org/immigration/economic-logic-illegal-immigration/p12969.

[52] Id.

[53] Id.

[54] Raul Hinojosa-Ojeda, The Economic Benefits of Comprehensive Immigration Reform, Cato Journal 32.1 (2012).

[55] Secure Fence Act, supra note 3.

[56] Michigan, 135 S. Ct. at 2707.

[57] Exec. Order No. 13767, supra note 1.

[58] Id.

[59] Michigan, 135 S. Ct. at 2707.

[60] Donald Trump, Statement on Justice Scalia (Feb. 13, 2016), https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-justice-scalia.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s