II 

118TH CONGRESS 

1ST SESSION S. 422 

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 SENATE OF THE UNITED STATES 

FEBRUARY 14, 2023 

Mr. BUDD (for himself, Mr. TILLIS, Mr. RISCH, Mr. CRAPO, Mr. CRUZ, Mr. 

DAINES, Mr. ROUNDS, and Mrs. BLACKBURN) introduced the following 

bill; which was read twice and referred to the Committee on Homeland 

Security and Governmental Affairs 

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. 

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’’. 


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1 SEC. 2. RESUME CONSTRUCTION OF BARRIERS AND ROADS 

2 ALONG UNITED STATES AND MEXICO BOR3 DER. 

4 (a) DEFINITIONS.—In this section: 

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

6 means the Department of Homeland Security. 

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

8 barriers’’ has the meaning given such term in sec9 tion 102(e) of the Illegal Immigration Reform and 

10 Immigrant Responsibility Act of 1996, as added by 

11 section 3(5) of this Act. 

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

13 the Secretary of Homeland Security. 

14 (4) TACTICAL INFRASTRUCTURE; TECH15 NOLOGY.—The terms ‘‘tactical infrastructure’’ and 

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

17 section 102(e) of the Illegal Immigration Reform 

18 and Immigrant Responsibility Act of 1996, as added 

19 by section 3(5) of this Act. 

20 (b) IN GENERAL.— 

21 (1) IMMEDIATE RESUMPTION OF BORDER BAR22 RIER CONSTRUCTION.—Not later than 1 day after 

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

24 shall resume all projects relating to the construction 

25 of physical barriers, tactical infrastructure, and 

26 technology along the international border between 


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1 the United States and Mexico that were underway, 

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

3 (2) NO CANCELLATIONS.—The Secretary may 

4 not cancel any contract for activities related to the 

5 construction of the border barrier system that was 

6 entered into on or before January 20, 2021. 

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

8 the Secretary shall expend all funds that were ap9 propriated or explicitly obligated for the construction 

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

11 2016. 

12 (c) UPHOLD NEGOTIATED AGREEMENTS.—The Sec13 retary shall ensure that all agreements entered into before 

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

15 the Department and any State, local, or Tribal govern16 ment, private citizen, or other stakeholder are honored by 

17 the Department relating to current and future construc18 tion of the border barrier system in accordance with such 

19 agreements. 

20 (d) AVAILABILITY OF FUNDS.—Notwithstanding any 

21 other provision of law, any amount appropriated or other22 wise made available during fiscal year 2018, 2019, 2020, 

23 or 2021 for any project relating to the construction of 

24 physical barriers, tactical infrastructure, and technology 


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1 along the southern border shall remain available until ex2 pended. 

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

4 otherwise made available for fiscal year 2021 that remain 

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

6 barriers, technology, or roads that— 

7 (1) use— 

8 (A) operationally effective designs deployed 

9 as of the date of enactment of the Consolidated 

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

11 such as currently deployed steel bollard designs, 

12 that prioritize agent safety; or 

13 (B) operationally effective adaptations of 

14 such designs that help mitigate community or 

15 environmental impacts of barrier system con16 struction, including adaptations based on con17 sultation with jurisdictions within which barrier 

18 system will be constructed; and 

19 (2) are constructed in the highest priority loca20 tions as identified in the Border Security Improve21 ment Plan. 

22 SEC. 3. IMPROVING THE REQUIREMENTS FOR BARRIERS 

23 ALONG THE SOUTHERN BORDER. 

24 (a) IN GENERAL.—Section 102 of the Illegal Immi25 gration Reform and Immigrant Responsibility Act of 1996 


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

2 is amended— 

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

4 and all that follows and inserting ‘‘(including the re5 moval of obstacles to detection of illegal entrants) to 

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

7 operate physical barriers, tactical infrastructure, and 

8 technology in the vicinity of the United States bor9 der to achieve situational awareness and operational 

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

11 illegal activity in high traffic areas.’’; 

12 (2) in subsection (b)— 

13 (A) in the subsection heading, by striking 

14 ‘‘FENCING AND ROAD IMPROVEMENTS’’ and in15 serting ‘‘PHYSICAL BARRIERS’’; 

16 (B) in paragraph (1)— 

17 (i) in subparagraph (A)— 

18 (I) by striking ‘‘subsection (a)’’ 

19 and inserting ‘‘this section’’; and 

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

21 cameras, and sensors to gain’’ and in22 serting ‘‘tactical infrastructure, and 

23 technology to achieve situational 

24 awareness and’’; 


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1 (ii) by amending subparagraph (B) to 

2 read as follows: 

3 ‘‘(B) PHYSICAL BARRIERS AND TACTICAL

4 INFRASTRUCTURE.—The Secretary, in carrying 

5 out this section, shall deploy along the United 

6 States border the most practical and effective 

7 physical barriers and tactical infrastructure 

8 available for achieving situational awareness 

9 and operational control of the border.’’; 

10 (iii) in subparagraph (C)— 

11 (I) in clause (i)— 

12 (aa) by striking ‘‘the Sec13 retary of the Interior, the Sec14 retary of Agriculture, States, 

15 local governments, Indian tribes, 

16 and’’ and inserting ‘‘appropriate 

17 Federal agency partners, appro18 priate representatives of Federal, 

19 State, Tribal, and local govern20 ments, and appropriate private’’; 

21 and 

22 (bb) by striking ‘‘fencing is’’ 

23 and inserting ‘‘physical barriers 

24 are’’; and 

25 (II) in clause (ii)— 


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1 (aa) in subclause (I), by 

2 striking ‘‘or’’ after the semicolon 

3 at the end; 

4 (bb) by amending subclause 

5 (II) to read as follows: 

6 ‘‘(II) delay the transfer to the 

7 United States of the possession of 

8 property or affect the validity of any 

9 property acquisition by the United 

10 States by purchase or eminent do11 main, or to otherwise affect the emi12 nent domain laws of the United States 

13 or of any State; or’’; and 

14 (cc) by adding at the end 

15 the following: 

16 ‘‘(III) create any right or liability 

17 for any party.’’; and 

18 (iv) by striking subparagraph (D); 

19 (C) in paragraph (2)— 

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

21 and inserting ‘‘Secretary of Homeland Se22 curity’’; and 

23 (ii) by striking ‘‘this subsection and 

24 shall commence construction of fences’’ 

25 and inserting ‘‘this section and shall comVerDate Sep 11 2014 22:09 Mar 02, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S422.IS S422

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1 mence the construction of physical bar2 riers’’; 

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

4 follows: 

5 ‘‘(3) AGENT SAFETY.—In carrying out this sec6 tion, the Secretary of Homeland Security, when de7 signing, constructing, and deploying physical bar8 riers, tactical infrastructure, or technology, shall in9 corporate such safety features into such design, con10 struction, or deployment of such physical barriers, 

11 tactical infrastructure, or technology, as the case 

12 may be, that the Secretary determines, in consulta13 tion with the labor organization representing agents 

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

15 the safety and effectiveness of officers or agents of 

16 the Department of Homeland Security or of any 

17 other Federal agency deployed in the vicinity of such 

18 physical barriers, tactical infrastructure, or tech19 nology.’’; and 

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

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

22 (3) by striking subsection (c); 

23 (4) by inserting after subsection (b) the fol24 lowing: 


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

2 Secretary of Homeland Security shall deploy along the 

3 United States border the most practical and effective tech4 nology available for achieving situational awareness and 

5 operational control of the border.’’; and 

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

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

8 ‘‘(1) ADVANCED UNATTENDED SURVEILLANCE

9 SENSORS.—The term ‘advanced unattended surveil10 lance sensors’ means sensors that utilize an onboard 

11 computer to analyze detections in an effort to dis12 cern between vehicles, humans, and animals, and ul13 timately filter false positives prior to transmission. 

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

15 traffic areas’ means areas in the vicinity of the 

16 United States border that— 

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

18 Customs and Border Protection; and 

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

20 activity, as determined by the Secretary of 

21 Homeland Security. 

22 ‘‘(3) OPERATIONAL CONTROL.—The term ‘oper23 ational control’ has the meaning given such term in 

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

25 Law 109–367; 8 U.S.C. 1701 note). 


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

2 barriers’ includes reinforced fencing, the border bar3 rier system, and levee walls. 

4 ‘‘(5) SITUATIONAL AWARENESS.—The term ‘sit5 uational awareness’ has the meaning given such 

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

7 Authorization Act for Fiscal Year 2017 (Public Law 

8 114–328; 6 U.S.C. 223(a)(7)). 

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

10 ‘tactical infrastructure’ includes boat ramps, access 

11 gates, checkpoints, lighting, and roads. 

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

13 means border surveillance and detection technology, 

14 including— 

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

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

17 surveillance equipment; 

18 ‘‘(C) Vehicle and Dismount Exploitation 

19 Radars (VADER); 

20 ‘‘(D) 3-dimensional, seismic acoustic detec21 tion and ranging border tunneling detection 

22 technology; 

23 ‘‘(E) advanced unattended surveillance 

24 sensors; 


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1 ‘‘(F) mobile vehicle-mounted and man2 portable surveillance capabilities; 

3 ‘‘(G) unmanned aircraft systems; and 

4 ‘‘(H) other border detection, communica5 tion, and surveillance technology. 

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

7 ‘unmanned aircraft system’ has the meaning given 

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

9 States Code.’’. 

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

11 issued by the Secretary of Homeland Security pursuant 

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

13 Immigrant Responsibility Act of 1996 (division C of Pub14 lic Law 104–208; 8 U.S.C. 1103 note) that was published 

15 in the Federal Register before the date of the enactment 

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

17 by subsection (a). 

18 SEC. 4. RECODIFYING THE SECRETARY OF HOMELAND SE19 CURITY’S WAIVER AUTHORITY; ADDING PRE20 VIOUSLY WAIVED LEGAL REQUIREMENTS. 

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

22 and Nationality Act (8 U.S.C. 1103) is amended by add23 ing at the end the following: 

24 ‘‘(h) WAIVER AUTHORITY.— 


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

2 provision of law, the Secretary of Homeland Security 

3 shall have the authority to waive all legal require4 ments that the Secretary determines necessary to 

5 ensure the expeditious design, testing, construction, 

6 installation, deployment, integration, and operation 

7 of the physical barriers, tactical infrastructure, and 

8 technology under this section and section 102 of the 

9 Illegal Immigration Reform and Immigrant Respon10 sibility Act of 1996 (division C of Public Law 104– 

11 208; 8 U.S.C. 1103 note). Such waiver authority 

12 shall also apply with respect to any maintenance car13 ried out on such physical barriers, tactical infra14 structure, or technology. Any such decision by the 

15 Secretary shall be effective upon publication in the 

16 Federal Register. 

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

18 after the date on which the Secretary of Homeland 

19 Security exercises the waiver authority under para20 graph (1), the Secretary shall notify the Committee 

21 on Homeland Security of the House of Representa22 tives and the Committee on Homeland Security and 

23 Governmental Affairs of the Senate of such waiver. 

24 ‘‘(3) FEDERAL COURT REVIEW.— 


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

2 the United States shall have exclusive jurisdic3 tion to hear all causes or claims arising from 

4 any action undertaken, or any decision made, 

5 by the Secretary of Homeland Security pursu6 ant to paragraph (1). A cause of action or 

7 claim may only be brought alleging a violation 

8 of the Constitution of the United States. The 

9 court shall not have jurisdiction to hear any 

10 claim not specified in this subparagraph. 

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

12 Any cause or claim brought pursuant to sub13 paragraph (A) shall be filed not later than 60 

14 days after the date of the action or decision 

15 made by the Secretary of Homeland Security. A 

16 claim shall be barred unless it is filed within 

17 the time specified. 

18 ‘‘(C) ABILITY TO SEEK APPELLATE RE19 VIEW.—An interlocutory or final judgment, de20 cree, or order of the district court may be re21 viewed only upon petition for a writ of certio22 rari to the Supreme Court of the United States. 

23 ‘‘(4) PREVIOUSLY WAIVED LEGAL REQUIRE24 MENTS.— 


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

2 to the construction of physical barriers, tactical 

3 infrastructure, and technology along the inter4 national border between the United States and 

5 Mexico shall be exempt from any law or regula6 tion referred to in subparagraph (B). 

7 ‘‘(B) ELEMENTS.—The laws and regula8 tions referred to in this subparagraph are— 

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

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

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

12 chapter 7 of title 5, United States Code 

13 (commonly known as the ‘Administrative 

14 Procedure Act’); 

15 ‘‘(iii) the Arizona Desert Wilderness 

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

17 ‘‘(iv) the Arizona-Idaho Conservation 

18 Act of 1988 (Public Law 100–696); 

19 ‘‘(v) the Act of June 8, 1940 (16 

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

21 the ‘Bald and Golden Eagle Protection 

22 Act’); 

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

24 7401 et seq.); 


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1 ‘‘(vii) the Federal Water Pollution 

2 Control Act (33 U.S.C. 1151 et seq.) (com3 monly known as the ‘Clean Water Act’); 

4 ‘‘(viii) the Coastal Zone Management 

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

6 ‘‘(ix) the Comprehensive Environ7 mental Response, Compensation, and Li8 ability Act of 1980 (42 U.S.C. 9601 et 

9 seq.); 

10 ‘‘(x) the Endangered Species Act of 

11 1973 (16 U.S.C. 1531 et seq.); 

12 ‘‘(xi) the Farmland Protection Policy 

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

14 ‘‘(xii) the Federal Cave Resources 

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

16 seq.); 

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

18 States Code (originally enacted as the 

19 ‘Federal Grants and Cooperative Agree20 ments Act of 1977’); 

21 ‘‘(xiv) the Federal Land Policy and 

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

23 et seq.); 

24 ‘‘(xv) the Fish and Wildlife Coordina25 tion Act (16 U.S.C. 662 et seq.); 


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1 ‘‘(xvi) the Migratory Bird Conserva2 tion Act of 1929 (16 U.S.C. 715 et seq.); 

3 ‘‘(xvii) the Migratory Bird Treaty Act 

4 (16 U.S.C. 703 et seq.); 

5 ‘‘(xviii) the Military Lands With6 drawal Act of 1999 (title XXX of Public 

7 Law 106–65); 

8 ‘‘(xix) the Act of June 12, 1960 (Pub9 lic Law 86–517; 16 U.S.C. 528 et seq.) 

10 (commonly known as the ‘Multiple-Use and 

11 Sustained-Yield Act of 1960’); 

12 ‘‘(xx) the National Environmental 

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

14 seq.); 

15 ‘‘(xxi) the National Fish and Wildlife 

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

17 ‘‘(xxii) the National Forest Manage18 ment Act of 1976 (16 U.S.C. 472a et 

19 seq.); 

20 ‘‘(xxiii) the National Historic Preser21 vation Act (16 U.S.C. 470 et seq.); 

22 ‘‘(xxiv) the National Parks and Recre23 ation Act of 1978 (Public Law 95–625); 

24 ‘‘(xxv) the National Trails System Act 

25 (16 U.S.C. 1241 et seq.); 


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1 ‘‘(xxvi) the National Wildlife Refuge 

2 System Administration Act of 1966 (16 

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

4 ‘‘(xxvii) the Native American Graves 

5 Protection and Repatriation Act (25 

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

7 ‘‘(xxviii) the Noise Control Act of 

8 1972 (42 U.S.C. 4901 et seq.); 

9 ‘‘(xxix) the Otay Mountain Wilderness 

10 Act of 1999 (Public Law 106–145); 

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

12 Omnibus Public Land Management Act of 

13 2009 (16 U.S.C. 470aaa et seq.) (com14 monly known as the ‘Paleontological Re15 sources Preservation Act’); 

16 ‘‘(xxxi) section 10 of the Act of Au17 gust 4, 1939 (43 U.S.C. 387) (commonly 

18 known as the ‘Reclamation Project Act of 

19 1939’); 

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

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

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

23 Harbors Act of 1899’); 

24 ‘‘(xxxiii) the Safe Drinking Water Act 

25 (42 U.S.C. 300f et seq.); 


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

2 et seq.); 

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

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

5 ‘‘(xxxvi) the Solid Waste Disposal Act 

6 (42 U.S.C. 6901 et seq.) (commonly known 

7 as the ‘Resource Conservation and Recov8 ery Act of 1976’); 

9 ‘‘(xxxvii) the Wild and Scenic Rivers 

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

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

12 1971 (16 U.S.C. 1331 et seq.) (commonly 

13 known as the ‘Wild Free-Roaming Horses 

14 and Burros Act of 1971’); 

15 ‘‘(xxxix) the Wilderness Act (16 

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

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

18 2505a, and 2306a of title 10, United 

19 States Code; 

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

21 States Code; 

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

23 ‘‘(xliii) sections 100101(a), 

24 100751(a), and 102101 of title 54, United 

25 States Code; 


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

2 1009, 1021, 3125, 3201, and 3203 of title 

3 54, United States Code; 

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

5 54, United States Code; 

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

7 Federal Regulations; and 

8 ‘‘(xlvii) sections 16.504, 16.505, 

9 17.205, 17.207, 22.404, 22.404–5, and 

10 28.102–1 of title 48, Code of Federal Reg11 ulations. 

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

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

14 and ‘technology’ have the meanings given such terms 

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

16 and Immigrant Responsibility Act of 1996 (division 

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

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

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

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

21 103 and inserting the following: 

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

Attorney General.’’. 


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1 SEC. 5. PROHIBITION AGAINST USE OF FUNDS TO IMPLE2 MENT OR ENFORCE PRESIDENTIAL PROCLA3 MATION 10142. 

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

5 Secretary of Homeland Security, or to any other official 

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

7 fiscal year, may be used to implement or enforce Presi8 dential Proclamation 10142 of January 20, 2021 (86 Fed. 

9 Reg. 7225). 

Æ 


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