re Executive Order (EO) “Border Security and Immigration Enforcement Improvements”

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He signed the Executive Order (EO) entitled “Border Security and Immigration Enforcement Improvements.” The EO declares that it is the policy of the executive branch for a wall along the southern border with Mexico to be built. The EO orders the Secretary of Homeland Security to design and construct the wall, to allocate funding to the wall, and to prepare a Congressional budget request. The Secure Fence Act of 2006  (“SFA”) is one of the statutes this EO relies on. The SFA authorizes the government to act as “necessary and appropriate.” The U.S. Supreme Court has held that under such a statute, “no regulation is ‘appropriate’ if it does significantly more harm than good.”

According to the EO, the President has the authority to order and fund the wall along the Mexican border under the the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) (INA), the Secure Fence Act of 2006 (Public Law 109 367) (Secure Fence Act), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Public Law 104 208 Div. C) (IIRIRA).

The Secure Fence Act states, “The Secretary of Homeland Security shall 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 . …” However, in Michigan v. E.P.A., 135 S.Ct. 2699 (2015), the court found that the statute at issue, the Clean Air Act, required expenditures to be “appropriate and necessary.” In that decision, the Supreme Court stated that an “Agency must consider cost—including, most importantly, cost of compliance—before deciding whether regulation is appropriate and necessary,” and “[o]ne would not say that it is even rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in … benefits … No regulation is ‘appropriate’ if it does significantly more harm than good.” The Court also stated, “There are undoubtedly settings in which the phrase ‘appropriate and necessary’ does not encompass cost.”

The EO’s reliance on the INA and IIRIRA for funding the wall also raises questions. These two Acts may be neither appropriate nor sufficient to fund the wall.

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