I 

118TH CONGRESS 

1ST SESSION H. R. 989 

To remove legal impediments preventing construction of a border barrier 

along the international border between the United States and Mexico, 

improve the construction requirements for such barrier, make previously 

appropriated funds available for constructing such barrier until expended, 

and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 14, 2023 

Mr. BANKS (for himself, Mr. GOODEN of Texas, Mr. BABIN, Mrs. LUNA, Mr. 

POSEY, Mr. CRENSHAW, Mr. HUNT, Mr. DUNCAN, Mr. BISHOP of North 

Carolina, Mrs. MILLER-MEEKS, Ms. VAN DUYNE, Mr. VAN DREW, Mrs. 

MILLER of Illinois, Mr. SANTOS, and Mr. BUCHANAN) introduced the following bill; which was referred to the Committee on Homeland Security, 

and in addition to the Committees on Natural Resources, Energy and 

Commerce, Transportation and Infrastructure, Armed Services, Agriculture, Small Business, the Judiciary, and Oversight and Accountability, 

for a period to be subsequently determined by the Speaker, in each case 

for consideration of such provisions as fall within the jurisdiction of the 

committee concerned 

A BILL 

To remove legal impediments preventing construction of a 

border barrier along the international border between 

the United States and Mexico, improve the construction 

requirements for such barrier, make previously appropriated funds available for constructing such barrier until 

expended, and for other purposes. 


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1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Build the Wall Now 

5 Act’’. 

6 SEC. 2. RESUME CONSTRUCTION OF BARRIERS AND ROADS 

7 ALONG UNITED STATES AND MEXICO BOR8 DER. 

9 (a) DEFINITIONS.—In this section: 

10 (1) DEPARTMENT.—The term ‘‘Department’’ 

11 means the Department of Homeland Security. 

12 (2) PHYSICAL BARRIERS.—The term ‘‘physical 

13 barriers’’ has the meaning given such term in sec14 tion 102(e) of the Illegal Immigration Reform and 

15 Immigrant Responsibility Act of 1996, as added by 

16 section 3(5) of this Act. 

17 (3) SECRETARY.—The term ‘‘Secretary’’ means 

18 the Secretary of Homeland Security. 

19 (4) TACTICAL INFRASTRUCTURE; TECH20 NOLOGY.—The terms ‘‘tactical infrastructure’’ and 

21 ‘‘technology’’ have the meanings given such terms in 

22 section 102(e) of the Illegal Immigration Reform 

23 and Immigrant Responsibility Act of 1996, as added 

24 by section 3(5) of this Act. 

25 (b) IN GENERAL.— 


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1 (1) IMMEDIATE RESUMPTION OF BORDER BAR2 RIER CONSTRUCTION.—Not later than 1 day after 

3 the date of the enactment of this Act, the Secretary 

4 shall resume all projects relating to the construction 

5 of physical barriers, tactical infrastructure, and 

6 technology along the international border between 

7 the United States and Mexico that were underway, 

8 or being planned for, prior to January 20, 2021. 

9 (2) NO CANCELLATIONS.—The Secretary may 

10 not cancel any contract for activities related to the 

11 construction of the border barrier system that was 

12 entered into on or before January 20, 2021. 

13 (3) USE OF FUNDS.—To carry out this section, 

14 the Secretary shall expend all funds that were ap15 propriated or explicitly obligated for the construction 

16 of the border barrier system on or after October 1, 

17 2016. 

18 (c) UPHOLD NEGOTIATED AGREEMENTS.—The Sec19 retary shall ensure that all agreements entered into before 

20 January 20, 2021, that were executed in writing between 

21 the Department and any State, local, or Tribal govern22 ment, private citizen, or other stakeholder are honored by 

23 the Department relating to current and future construc24 tion of the border barrier system in accordance with such 

25 agreements. 


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1 (d) AVAILABILITY OF FUNDS.—Notwithstanding any 

2 other provision of law, any amount appropriated or other3 wise made available during fiscal year 2018, 2019, 2020, 

4 or 2021 for any project relating to the construction of 

5 physical barriers, tactical infrastructure, and technology 

6 along the southern border shall remain available until ex7 pended. 

8 (e) USE OF FUNDS.—Any amounts appropriated or 

9 otherwise made available for fiscal year 2021 that remain 

10 available pursuant to subsection (d) may only be used for 

11 barriers, technology, or roads that— 

12 (1) use— 

13 (A) operationally effective designs deployed 

14 as of the date of enactment of the Consolidated 

15 Appropriations Act, 2017 (Public Law 115–31), 

16 such as currently deployed steel bollard designs, 

17 that prioritize agent safety; or 

18 (B) operationally effective adaptations of 

19 such designs that help mitigate community or 

20 environmental impacts of barrier system con21 struction, including adaptations based on con22 sultation with jurisdictions within which barrier 

23 system will be constructed; and 


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1 (2) are constructed in the highest priority loca2 tions as identified in the Border Security Improve3 ment Plan. 

4 SEC. 3. IMPROVING THE REQUIREMENTS FOR BARRIERS 

5 ALONG THE SOUTHERN BORDER. 

6 (a) IN GENERAL.—Section 102 of the Illegal Immi7 gration Reform and Immigrant Responsibility Act of 1996 

8 (division C of Public Law 104–208; 8 U.S.C. 1103 note) 

9 is amended— 

10 (1) in subsection (a), by striking ‘‘to install’’ 

11 and all that follows and inserting ‘‘(including the re12 moval of obstacles to detection of illegal entrants) to 

13 design, test, construct, install, deploy, integrate, and 

14 operate physical barriers, tactical infrastructure, and 

15 technology in the vicinity of the United States bor16 der to achieve situational awareness and operational 

17 control of the border and deter, impede, and detect 

18 illegal activity in high traffic areas.’’; 

19 (2) in subsection (b)— 

20 (A) in the subsection heading, by striking 

21 ‘‘FENCING AND ROAD IMPROVEMENTS’’ and in22 serting ‘‘PHYSICAL BARRIERS’’; 

23 (B) in paragraph (1)— 

24 (i) in subparagraph (A)— 


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1 (I) by striking ‘‘subsection (a)’’ 

2 and inserting ‘‘this section’’; and 

3 (II) by striking ‘‘roads, lighting, 

4 cameras, and sensors to gain’’ and in5 serting ‘‘tactical infrastructure, and 

6 technology to achieve situational 

7 awareness and’’; 

8 (ii) by amending subparagraph (B) to 

9 read as follows: 

10 ‘‘(B) PHYSICAL BARRIERS AND TACTICAL

11 INFRASTRUCTURE.—The Secretary, in carrying 

12 out this section, shall deploy along the United 

13 States border the most practical and effective 

14 physical barriers and tactical infrastructure 

15 available for achieving situational awareness 

16 and operational control of the border.’’; 

17 (iii) in subparagraph (C)— 

18 (I) in clause (i)— 

19 (aa) by striking ‘‘the Sec20 retary of the Interior, the Sec21 retary of Agriculture, States, 

22 local governments, Indian tribes, 

23 and’’ and inserting ‘‘appropriate 

24 Federal agency partners, appro25 priate representatives of Federal, 


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1 State, Tribal, and local govern2 ments, and appropriate private’’; 

3 and 

4 (bb) by striking ‘‘fencing is’’ 

5 and inserting ‘‘physical barriers 

6 are’’; and 

7 (II) in clause (ii)— 

8 (aa) in subclause (I), by 

9 striking ‘‘or’’ after the semicolon 

10 at the end; 

11 (bb) by amending subclause 

12 (II) to read as follows: 

13 ‘‘(II) delay the transfer to the 

14 United States of the possession of 

15 property or affect the validity of any 

16 property acquisition by the United 

17 States by purchase or eminent do18 main, or to otherwise affect the emi19 nent domain laws of the United States 

20 or of any State; or’’; and 

21 (cc) by adding at the end 

22 the following: 

23 ‘‘(III) create any right or liability 

24 for any party.’’; and 

25 (iv) by striking subparagraph (D); 


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1 (C) in paragraph (2)— 

2 (i) by striking ‘‘Attorney General’’ 

3 and inserting ‘‘Secretary of Homeland Se4 curity’’; and 

5 (ii) by striking ‘‘this subsection and 

6 shall commence construction of fences’’ 

7 and inserting ‘‘this section and shall com8 mence the construction of physical bar9 riers’’; 

10 (D) by amending paragraph (3) to read as 

11 follows: 

12 ‘‘(3) AGENT SAFETY.—In carrying out this sec13 tion, the Secretary of Homeland Security, when de14 signing, constructing, and deploying physical bar15 riers, tactical infrastructure, or technology, shall in16 corporate such safety features into such design, con17 struction, or deployment of such physical barriers, 

18 tactical infrastructure, or technology, as the case 

19 may be, that the Secretary determines, in consulta20 tion with the labor organization representing agents 

21 of U.S. Border Patrol, are necessary to maximize 

22 the safety and effectiveness of officers or agents of 

23 the Department of Homeland Security or of any 

24 other Federal agency deployed in the vicinity of such 


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1 physical barriers, tactical infrastructure, or tech2 nology.’’; and 

3 (E) in paragraph (4), by striking ‘‘this 

4 subsection’’ and inserting ‘‘this section’’; 

5 (3) by striking subsection (c); 

6 (4) by inserting after subsection (b) the fol7 lowing: 

8 ‘‘(c) TECHNOLOGY.—In carrying out this section, the 

9 Secretary of Homeland Security shall deploy along the 

10 United States border the most practical and effective tech11 nology available for achieving situational awareness and 

12 operational control of the border.’’; and 

13 (5) by adding at the end the following: 

14 ‘‘(e) DEFINITIONS.—In this section: 

15 ‘‘(1) ADVANCED UNATTENDED SURVEILLANCE

16 SENSORS.—The term ‘advanced unattended surveil17 lance sensors’ means sensors that utilize an onboard 

18 computer to analyze detections in an effort to dis19 cern between vehicles, humans, and animals, and ul20 timately filter false positives prior to transmission. 

21 ‘‘(2) HIGH TRAFFIC AREAS.—The term ‘high 

22 traffic areas’ means areas in the vicinity of the 

23 United States border that— 

24 ‘‘(A) are within the responsibility of U.S. 

25 Customs and Border Protection; and 


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1 ‘‘(B) have significant unlawful cross-border 

2 activity, as determined by the Secretary of 

3 Homeland Security. 

4 ‘‘(3) OPERATIONAL CONTROL.—The term ‘oper5 ational control’ has the meaning given such term in 

6 section 2(b) of the Secure Fence Act of 2006 (Public 

7 Law 109–367; 8 U.S.C. 1701 note). 

8 ‘‘(4) PHYSICAL BARRIERS.—The term ‘physical 

9 barriers’ includes reinforced fencing, the border bar10 rier system, and levee walls. 

11 ‘‘(5) SITUATIONAL AWARENESS.—The term ‘sit12 uational awareness’ has the meaning given such 

13 term in section 1092(a)(7) of the National Defense 

14 Authorization Act for Fiscal Year 2017 (Public Law 

15 114–328; 6 U.S.C. 223(a)(7)). 

16 ‘‘(6) TACTICAL INFRASTRUCTURE.—The term 

17 ‘tactical infrastructure’ includes boat ramps, access 

18 gates, checkpoints, lighting, and roads. 

19 ‘‘(7) TECHNOLOGY.—The term ‘technology’ 

20 means border surveillance and detection technology, 

21 including— 

22 ‘‘(A) tower-based surveillance technology; 

23 ‘‘(B) deployable, lighter-than-air ground 

24 surveillance equipment; 


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1 ‘‘(C) Vehicle and Dismount Exploitation 

2 Radars (VADER); 

3 ‘‘(D) 3-dimensional, seismic acoustic detec4 tion and ranging border tunneling detection 

5 technology; 

6 ‘‘(E) advanced unattended surveillance 

7 sensors; 

8 ‘‘(F) mobile vehicle-mounted and man9 portable surveillance capabilities; 

10 ‘‘(G) unmanned aircraft systems; and 

11 ‘‘(H) other border detection, communica12 tion, and surveillance technology. 

13 ‘‘(8) UNMANNED AIRCRAFT SYSTEM.—The term 

14 ‘unmanned aircraft system’ has the meaning given 

15 such term in section 44801(12) of title 49, United 

16 States Code.’’. 

17 (b) EXISTING WAIVERS NOT AFFECTED.—A waiver 

18 issued by the Secretary of Homeland Security pursuant 

19 to section 102(c) of the Illegal Immigration Reform and 

20 Immigrant Responsibility Act of 1996 (division C of Pub21 lic Law 104–208; 8 U.S.C. 1103 note) that was published 

22 in the Federal Register before the date of the enactment 

23 of this Act shall not be affected by the amendment made 

24 by subsection (a). 


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1 SEC. 4. RECODIFYING THE SECRETARY OF HOMELAND SE2 CURITY’S WAIVER AUTHORITY; ADDING PRE3 VIOUSLY WAIVED LEGAL REQUIREMENTS. 

4 (a) IN GENERAL.—Section 103 of the Immigration 

5 and Nationality Act (8 U.S.C. 1103) is amended by add6 ing at the end the following: 

7 ‘‘(h) WAIVER AUTHORITY.— 

8 ‘‘(1) IN GENERAL.—Notwithstanding any other 

9 provision of law, the Secretary of Homeland Security 

10 shall have the authority to waive all legal require11 ments that the Secretary determines necessary to 

12 ensure the expeditious design, testing, construction, 

13 installation, deployment, integration, and operation 

14 of the physical barriers, tactical infrastructure, and 

15 technology under this section and section 102 of the 

16 Illegal Immigration Reform and Immigrant Respon17 sibility Act of 1996 (division C of Public Law 104– 

18 208; 8 U.S.C. 1103 note). Such waiver authority 

19 shall also apply with respect to any maintenance car20 ried out on such physical barriers, tactical infra21 structure, or technology. Any such decision by the 

22 Secretary shall be effective upon publication in the 

23 Federal Register. 

24 ‘‘(2) NOTIFICATION.—Not later than 7 days 

25 after the date on which the Secretary of Homeland 

26 Security exercises the waiver authority under paraVerDate Sep 11 2014 05:54 Mar 07, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H989.IH H989

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1 graph (1), the Secretary shall notify the Committee 

2 on Homeland Security of the House of Representa3 tives and the Committee on Homeland Security and 

4 Governmental Affairs of the Senate of such waiver. 

5 ‘‘(3) FEDERAL COURT REVIEW.— 

6 ‘‘(A) IN GENERAL.—The district courts of 

7 the United States shall have exclusive jurisdic8 tion to hear all causes or claims arising from 

9 any action undertaken, or any decision made, 

10 by the Secretary of Homeland Security pursu11 ant to paragraph (1). A cause of action or 

12 claim may only be brought alleging a violation 

13 of the Constitution of the United States. The 

14 court shall not have jurisdiction to hear any 

15 claim not specified in this subparagraph. 

16 ‘‘(B) TIME FOR FILING OF COMPLAINT.— 

17 Any cause or claim brought pursuant to sub18 paragraph (A) shall be filed not later than 60 

19 days after the date of the action or decision 

20 made by the Secretary of Homeland Security. A 

21 claim shall be barred unless it is filed within 

22 the time specified. 

23 ‘‘(C) ABILITY TO SEEK APPELLATE RE24 VIEW.—An interlocutory or final judgment, de25 cree, or order of the district court may be reVerDate Sep 11 2014 05:54 Mar 07, 2023 Jkt 039200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\H989.IH H989

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1 viewed only upon petition for a writ of certio2 rari to the Supreme Court of the United States. 

3 ‘‘(4) PREVIOUSLY WAIVED LEGAL REQUIRE4 MENTS.— 

5 ‘‘(A) IN GENERAL.—Any project relating 

6 to the construction of physical barriers, tactical 

7 infrastructure, and technology along the inter8 national border between the United States and 

9 Mexico shall be exempt from any law or regula10 tion referred to in subparagraph (B). 

11 ‘‘(B) ELEMENTS.—The laws and regula12 tions referred to in this subparagraph are— 

13 ‘‘(i) an Act to facilitate the work of 

14 the Forest Service (Public Law 87–869); 

15 ‘‘(ii) subchapter II of chapter 5 and 

16 chapter 7 of title 5, United States Code 

17 (commonly known as the ‘Administrative 

18 Procedure Act’); 

19 ‘‘(iii) the Arizona Desert Wilderness 

20 Act (6 U.S.C. 460ddd et seq.); 

21 ‘‘(iv) the Arizona-Idaho Conservation 

22 Act of 1988 (Public Law 100–696); 

23 ‘‘(v) the Act of June 8, 1940 (16 

24 U.S.C. 668 et seq.) (commonly known as 


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1 the ‘Bald and Golden Eagle Protection 

2 Act’); 

3 ‘‘(vi) the Clean Air Act (42 U.S.C. 

4 7401 et seq.); 

5 ‘‘(vii) the Federal Water Pollution 

6 Control Act (33 U.S.C. 1151 et seq.) (com7 monly known as the ‘Clean Water Act’); 

8 ‘‘(viii) the Coastal Zone Management 

9 Act (16 U.S.C. 1451 et seq.); 

10 ‘‘(ix) the Comprehensive Environ11 mental Response, Compensation, and Li12 ability Act of 1980 (42 U.S.C. 9601 et 

13 seq.); 

14 ‘‘(x) the Endangered Species Act of 

15 1973 (16 U.S.C. 1531 et seq.); 

16 ‘‘(xi) the Farmland Protection Policy 

17 Act (7 U.S.C. 4201 et seq.); 

18 ‘‘(xii) the Federal Cave Resources 

19 Protection Act of 1988 (16 U.S.C. 4301 et 

20 seq.); 

21 ‘‘(xiii) chapter 63 of title 31, United 

22 States Code (originally enacted as the 

23 ‘Federal Grants and Cooperative Agree24 ments Act of 1977’); 


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1 ‘‘(xiv) the Federal Land Policy and 

2 Management Act of 1976 (43 U.S.C. 1701 

3 et seq.); 

4 ‘‘(xv) the Fish and Wildlife Coordina5 tion Act (16 U.S.C. 662 et seq.); 

6 ‘‘(xvi) the Migratory Bird Conserva7 tion Act of 1929 (16 U.S.C. 715 et seq.); 

8 ‘‘(xvii) the Migratory Bird Treaty Act 

9 (16 U.S.C. 703 et seq.); 

10 ‘‘(xviii) the Military Lands With11 drawal Act of 1999 (title XXX of Public 

12 Law 106–65); 

13 ‘‘(xix) the Act of June 12, 1960 (Pub14 lic Law 86–517; 16 U.S.C. 528 et seq.) 

15 (commonly known as the ‘Multiple-Use and 

16 Sustained-Yield Act of 1960’); 

17 ‘‘(xx) the National Environmental 

18 Policy Act of 1969 (42 U.S.C. 4321 et 

19 seq.); 

20 ‘‘(xxi) the National Fish and Wildlife 

21 Act of 1956 (16 U.S.C. 742a et seq.); 

22 ‘‘(xxii) the National Forest Manage23 ment Act of 1976 (16 U.S.C. 472a et 

24 seq.); 


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1 ‘‘(xxiii) the National Historic Preser2 vation Act (16 U.S.C. 470 et seq.); 

3 ‘‘(xxiv) the National Parks and Recre4 ation Act of 1978 (Public Law 95–625); 

5 ‘‘(xxv) the National Trails System Act 

6 (16 U.S.C. 1241 et seq.); 

7 ‘‘(xxvi) the National Wildlife Refuge 

8 System Administration Act of 1966 (16 

9 U.S.C. 668dd et seq.); 

10 ‘‘(xxvii) the Native American Graves 

11 Protection and Repatriation Act (25 

12 U.S.C. 3001 et seq.); 

13 ‘‘(xxviii) the Noise Control Act of 

14 1972 (42 U.S.C. 4901 et seq.); 

15 ‘‘(xxix) the Otay Mountain Wilderness 

16 Act of 1999 (Public Law 106–145); 

17 ‘‘(xxx) subtitle D of title VI of the 

18 Omnibus Public Land Management Act of 

19 2009 (16 U.S.C. 470aaa et seq.) (com20 monly known as the ‘Paleontological Re21 sources Preservation Act’); 

22 ‘‘(xxxi) section 10 of the Act of Au23 gust 4, 1939 (43 U.S.C. 387) (commonly 

24 known as the ‘Reclamation Project Act of 

25 1939’); 


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1 ‘‘(xxxii) the Act of March 3, 1899 (30 

2 Stat. 1121, chapter 425; (33 U.S.C. 403 et 

3 seq.) (commonly known as the ‘Rivers and 

4 Harbors Act of 1899’); 

5 ‘‘(xxxiii) the Safe Drinking Water Act 

6 (42 U.S.C. 300f et seq.); 

7 ‘‘(xxxiv) the Sikes Act (16 U.S.C. 670 

8 et seq.); 

9 ‘‘(xxxv) the Small Business Act (15 

10 U.S.C. 631 et seq.); 

11 ‘‘(xxxvi) the Solid Waste Disposal Act 

12 (42 U.S.C. 6901 et seq.) (commonly known 

13 as the ‘Resource Conservation and Recov14 ery Act of 1976’); 

15 ‘‘(xxxvii) the Wild and Scenic Rivers 

16 Act (16 U.S.C. 1271 et seq.); 

17 ‘‘(xxxviii) the Act of December 15, 

18 1971 (16 U.S.C. 1331 et seq.) (commonly 

19 known as the ‘Wild Free-Roaming Horses 

20 and Burros Act of 1971’); 

21 ‘‘(xxxix) the Wilderness Act (16 

22 U.S.C. 1131 et seq.); 

23 ‘‘(xl) sections 2304, 2304c, 2305, 

24 2505a, and 2306a of title 10, United 

25 States Code; 


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1 ‘‘(xli) section 550 of title 40, United 

2 States Code; 

3 ‘‘(xlii) title 41, United States Code; 

4 ‘‘(xliii) sections 100101(a), 

5 100751(a), and 102101 of title 54, United 

6 States Code; 

7 ‘‘(xliv) chapters 1003, 1005, 1007, 

8 1009, 1021, 3125, 3201, and 3203 of title 

9 54, United States Code; 

10 ‘‘(xlv) division A of subtitle III of title 

11 54, United States Code; 

12 ‘‘(xlvi) part 125 of title 13, Code of 

13 Federal Regulations; and 

14 ‘‘(xlvii) sections 16.504, 16.505, 

15 17.205, 17.207, 22.404, 22.404–5, and 

16 28.102–1 of title 48, Code of Federal Reg17 ulations. 

18 ‘‘(5) DEFINITIONS.—In this subsection, the 

19 terms ‘physical barriers’, ‘tactical infrastructure’, 

20 and ‘technology’ have the meanings given such terms 

21 in section 102(e) of the Illegal Immigration Reform 

22 and Immigrant Responsibility Act of 1996 (division 

23 C of Public Law 104–208; 8 U.S.C. 1103 note).’’. 

24 (b) CLERICAL AMENDMENT.—The table of contents 

25 of the Immigration and Nationality Act (8 U.S.C. 1101 


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1 et seq.) is amended by striking the item relating to section 

2 103 and inserting the following: 

‘‘Sec. 103. Powers and duties of the Secretary, the Under Secretary, and the 

Attorney General.’’. 

3 SEC. 5. PROHIBITION AGAINST USE OF FUNDS TO IMPLE4 MENT OR ENFORCE PRESIDENTIAL PROCLA5 MATION 10142. 

6 No funds, resources, or fees made available to the 

7 Secretary of Homeland Security, or to any other official 

8 of any Federal agency by any Act of Congress for any 

9 fiscal year, may be used to implement or enforce Presi10 dential Proclamation 10142 of January 20, 2021 (86 Fed. 

11 Reg. 7225). 

Æ 


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