Constructing U.S. Border Barriers with Legal Waivers and Voluntary Compliance

Authors: Kenneth Madsen*, The Ohio State University
Topics: Political Geography, Environment, Gender
Keywords: borders, barriers, legal geographies, states of exception, governance
Session Type: Paper
Day: 4/12/2018
Start / End Time: 5:20 PM / 7:00 PM
Room: Studio 4, Marriott, 2nd Floor
Presentation File: No File Uploaded

In an effort to expedite the construction of border barriers, 48 sets of laws have been waived in the U.S. since 2005 when authority for such actions was first delegated by Congress to the Secretary of Homeland Security. Ranging from environmental protections to historic preservation and even religious freedoms, waived laws facilitated extensive construction of barriers along the U.S.-Mexico border. While five proclamations were issued under Secretary Chertoff during the Bush Administration, the DHS under Obama issued no such waivers and subsequently complied “voluntarily” with many of the laws even though it continued to construct barriers as mandated by the Secure Fence Act. Such compliance was not consistent, however, and the administration likely could not be held legally liable for any infractions given the waivers. Most recently, the first two Secretaries of Homeland Security under the Trump Administration have both issued waivers, first for the construction of prototypes in San Diego and secondly for a rather routine wall upgrade in Calexico. Congress has also seen the introduction of several bills that would directly waive laws in such cases, although none have passed. While much attention has been given to the presence of these waivers, they have not been systematically mapped and analysed. This paper reports on such work, the role of maps in raising awareness of the legal waivers, and how the side-lining of decades of legal protections has become the new normal in the pursuit of border security.

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