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Article Index

Student Work
Race, Racism and the Law
Spring, 2012

Statute (Federal/State)

  • 8 U.S.C.A. § 1103(b)(1) (West).  Powers and duties of the Secretary, the Under Secretary, and the Attorney General
  • Civil Rights Act of 1964, 88 P.L. 352 (July 2, 1964). 
  • Secure Fence Act Of 2006, PL 109–367, 120 Stat 2638 (Oct 26, 2006).

Cases (Federal/State)

  • Alexander v. Sandoval, 532 U.S. 275, 279 (2001).
  • U.S. v. 1.04 Acres of Land, more or less, situate in Cameron County, Tex., 538 F. Supp. 2d 995 (S.D. Tex. 2008). 
  • U.S. v. 1.16 Acres of Land, more or less, situate in Cameron County, Tex., 585 F. Supp. 2d 901 (S.D. Tex. 2008).  

Law Review Articles

  • Bryan Clark, Refining the Nondelegation Doctrine in Light of Real Id Act Section 102(c): Time to Stop Bulldozing Constitutional Barriers for A Border Fence, 58 Catholic University Law Review 851, (2009).
  • Maurice Hew, Jr., The Fence and the Wall (mart): Wal-Mart and Immigration Reform Policy, 39 Connecticut Law Review 1383 (2007).
  • Sara Ibrahim, Lee Bargerguff, Mark Krikorian, and Rachel Canty, Panel: United States Border Control and the Secure Fence Act of 2006, 59 Administrative Law Review. 569, (2007).
  • Hannah Whitney McMurry Schrock, An Emerging Civil Rights Movement: Immigrant Populations in Need of Equal Protection Under the Fourteenth Amendment, 34 Northern Kentucky Law Review. 749 (2007)
  • Jose R. Perez, Jr., Key Legislative Developments in Immigration Law Since September 11, 2001, 17 International Law Journal 43 (Summer 2009)

Other

  • Adalberto Aguirre, Jr., Mexican Border Crossers: The Mexican Body in Immigration Discourse, 35(4): Journal for Social Justice 99-106 (2009).
  • Emil B. McCain, Evidence of Resident Jaguars (Pantha Onca) in the Southwestern United States and the Implications for Conservation, 89(1): Journal of Mammalogy, American Society of Mammalogists 1-10 (2008).

 

 


 

Annotations

 

Statutes

 

8 U.S.C.A. § 1103(b)(1) (West).  Powers and duties of the Secretary, the Under Secretary, and the Attorney General.

 

The Statute dealt with recent amendments made by the government to accommodate the construction of a 700-mile fence. Much of the land along the border is privately owned by United States citizens. When the Secure Fence Act of 2006 was passed, the legislature amended the section pertaining to the government’s land acquisition authority. In general the Secretary of Homeland Security “shall take such actions as may be necessary to install physical barriers and roads in the vicinity of the border to deter illegal crossings”.[1]   The statute gave extreme discretion to the Department of Homeland Security (DHS) to determine what land the government could acquire.

The statute did not mention how effective a fence may be at preventing illegal immigration, but it did give the government broad authority to take any lands it needed in an effort to construct or maintain the fence. I found the statute helpful because shed light on the issues landowners in the region were facing with the creation of a fence on the border.

 

Civil Rights Act of 1964, 88 P.L. 352 (July 2, 1964).

The Civil Rights Act of 1964 was a landmark piece of legislation in the United States. Congress declared its authority to legislate under several different provisions under the United States Constitution, specifically under Congress’ authority to regulate commerce. (the Commerce Clause).

The Civil Rights Act outlawed major forms of discrimination against African Americans, women, and other minority groups.   Title VI of the Civil Rights Act specifically prevented discrimination by government agencies that receive federal funds. If an agency is found not to comply with Title VI, it faced losing its federal funds.

Title VI of the Civil Rights Act was extremely broad, and I had trouble relating to my thesis statement. The title declares it to be the policy of the United States that discrimination on the ground of race, color, or national origin shall not occur in connection with programs and activities receiving federal financial assistance. I tried to analogize Title VI with a potential disparate impact claim Mexicans Americans could have, but I struggled to find a connection.

 

Secure Fence Act Of 2006, PL 109–367, 120 Stat 2638 (Oct 26, 2006).

The goal of the Secure Fence Act of 2006 is to help secure America’s border with Mexico. The Legislation called for tripling the size of border patrol fences along the Mexican-American border to a total of 700 miles.   The Act also called for additional checkpoints, lighting, and electronic surveillance along the entire 2000-mile border.  The Secure Fence Act of 2006 is at the core of my thesis statement. The Act has been controversial from its inception. Almost every American has an opinion on whether a fence should be built between Mexico and the United States. Recent cries for enhanced national security, and an ailing national economy both play a role in the Secure Fence Act of 2006’s enactment  I spent the majority of my research trying to gain varying perspectives on all of the issues pertinent to building a 700-mile fence along the Mexican American border. I tried to assemble all the viewpoints and then contrast them with their supported evidentiary backings.   The text of the Act itself was extremely helpful as I went about my research.

 


Cases

Alexander v. Sandoval, 532 U.S. 275, (2001). Total Pages Read: 21

This annotation was based on the United States Supreme Court case of Alexander v. Sandoval.   Under Title VI of the Civil Rights Act of 1964, 42 USCS 2000d, prohibits discrimination based on race, color, or national origin in covered programs and activities.   In 1990 the state of Alabama enacted an amendment to its state constitution that made English the official language in Alabama. As a result, the Department of Public Safety required that the Alabama test for a driver’s license only be given in English.

Martha Sandoval sued James Alexander, Director of the Department of Public Safety, claiming that the English-only test was discriminatory. It was held in a 5-4 ruling, that there exists no private right of action to enforce disparate-impact regulations promulgated under Title VI.   The argument that the regulations themselves created a private right of action is off base; only Congressional statutes confer such rights. I found this case to be semi-applicable for any minority group (i.e. Mexican-Americans) as they consider grounds for claiming disparate impact due to the creation of a border fence because it tells them they cannot file private suits against the government individually.

 

 

U.S. v. 1.04 Acres of Land, more or less, situate in Cameron County, Tex., 538 F. Supp. 2d 995 (S.D. Tex. 2008).  Total Pages Read: 17

 

The United States Government filed a condemnation action against a private landowner in Texas under 8 U.S.C.S. 1103. The complaint sought a temporary easement on the landowner’s property to conduct surveying, testing, and other investigatory work necessary to plan the construction of part of the fence. The Court found that the government’s use of the Declaration of Taking Act was proper. The court overruled the private landowners objections.

This case demonstrated the enhanced powers the federal government has when going about the construction of the fence. This case, along with U.S. v 1.1 Acres of Land, really showed me that not much, if anything will stand in the government’s way of building the fence. The government can simply create new legislation that grants the Department of Homeland Security greater authority. Although the case did not get into the intricacies of the potential effectiveness of the fence, it provided a glimpse of the myriad of issues that can result from such a large government undertaking.

 

U.S. v. 1.16 Acres of Land, more or less, situate in Cameron County, Tex., 585 F. Supp. 2d 901 (S.D. Tex. 2008).   Total Pages Read: 15

 The case dealt with the rights of a private property owner in regards to land that was needed to build the fence in portions of Texas. The landowners objected based on recent amendments to 8 U.S.C.S. 1103. The Texas landowners contended that the amendments only permitted the federal government to take property “along the border” for construction of the fencing. The landowners asserted that “along the border” meant either on the border or touching the border. They contended that the government was not allowed to take land that did not meet these two requirements. Ultimately the landowners’ objections were overruled. It was held the court cold not submit its own interpretation of what the legislature believed to constitute “along the border”.This case did not deal with the proposed effectiveness of the fence in curtailing illegal immigration. The case did however bring light to other issues that were present in the region when the decision was made to build 700-miles of fencing along the Mexican-American border.   This case supported my overall conclusion that a fence should not be built because many factors, besides just the fences effectiveness are present when deciding whether to undertake a massive project such as a 700-mile fence.

 


Law Review Articles

Bryan Clark, Refining the Nondelegation Doctrine in Light of Real Id Act Section 102(c): Time to Stop Bulldozing Constitutional Barriers for A Border Fence, 58 Catholic University Law Review 851 (2009). Total Pages Read: 13

Byran Clark is a 2010 graduate of The Catholic University of America, Columbus School of Law. This article questioned the constitutionality of how Congress went about delegating authority to construct a fence on the Mexican-American boarder.   The author states that perhaps what is more controversial than the fence itself, is the manner in which Congress gave the Department of Homeland Security free reign to determine how and where the fence will be built.

It is uncontested that Congress may enact legislation authorizing the funding and construction of a fence between the United States and Mexico. It is also uncontested that Congress may waive any provision of any law in order to facilitate the construction of a fence.   The controversy is whether congress can confer such power to an agency in the Executive Branch, (the Dept. of Homeland Security).

Many American citizens living on land near the proposed fence, question the constitutionality of The Department of Homeland Security’s free reign and discretion. Specifically, congress has allowed the Department of Homeland Security to buy any interest in land adjacent to, or in the vicinity of, an international border. Some landowners claim their land is being unconstitutionally taken from them.

 

Hannah Whitney McMurry Schrock, An Emerging Civil Rights Movement: Immigrant Populations in Need of Equal Protection Under the Fourteenth Amendment, 34 Northern Kentucky Law Review 749 (2007).

Hannah Whitney McMurray Schrock is a 2008 graduate of the Salmon P. Chase College of Law. She earned her Bachelors of Arts in Sociology with a concentration in Latin American/Iberian studies from Bard College in 2004.   Ms. Schrock’s article commented on whether the Constitution’s Equal Protection clause should extend to those that are in our country illegally, stating that Fourteenth Amendment protects “all persons”.

This article was not directly tied to my thesis on the proposed effectiveness or ineffectiveness of a fence on the Mexican-American border. The article did however provide thorough groundwork for the what goes into an immigrants mind when they decide to leave their homeland and risk entering into the United States illegally.   The article’s primary focus was on the Hispanic community and how recent influx on the amount of Hispanics living in America has been a catalyst for immigration debate and reform.

Although not directly on point, I did find the article helpful. In my quest to understand the alleged effectiveness of a constructing a fence, Ms. Schrock’s article made an emotional plea, by highlighting the risks and struggles one takes just to gain entry into the United States, legally or illegally.

 

Jose R. Perez, Jr., Key Legislative Developments in Immigration Law Since September 11, 2001, 17 International Law Journal 43 (2009).

An article written by Jose R. Perez with Foster Quan LLP, in Houston Texas. Mr. Perez is board certified in immigration and nationality law since 1993. He is Cuban-born and a native of Texas since 1970. Mr. Perez’s article provides a brief summary and quick reference to some of the most important federal immigration legislation to be enacted in a post 9/11 United States. The article solely focuses on the time perior from September 11, 2001 to present

Mr. Perez talks about the past views of immigration and how they have changed due to the United States recent need for increased national security. Even though the article primarily focuses on how the Mexican-American border has changed due to 9/11, it gives an accurate account of how effective or rather ineffective a fence would be on illegal immigration.

The Secure Fence Act of 2006 was aimed at preventing “all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments or terrorism, narcotics, and other contraband”.[2] The author also talks about how constructing a 700-mile fence would forever change the way the United States deals with border security. Mr. Perez also talked about the symbolic significance of fence and how it pertains to neighbors and foreign policy.

I found the International Law Journal to be extremely helpful in establishing a guide to the specific legislation that has been enacted within the past 10 years. The article provided each law and then summarized the law and its effect on Mexican-American border.

 

Maurice Hew, Jr., The Fence and the Wall (mart): Wal-Mart and Immigration Reform Policy, 39 Connecticut Law Review 1383 (2007).

Maurice Hew Jr. is a Professor Thurgood Marshall School of Law. He is board certified in immigration and nationality law.   Mr. Hew’s article questioned the proposed effectiveness of a 700-mile fence and contrasted the proposed effectiveness of the Secure Fence Act of 2006 with other ideas and concepts not yet proposed to the legislature.  Mr. Hew analogized the fence with the wall that France created during WWII to keep the Germans from invading their country. The fence was not successful in France because of the “human spirit” according to Mr. Hew. This law review article was extremely on point. The majority of the article focused on the proposed effectiveness of a fence on the Mexican-American border. The article also talked about how preventing companies like Wal-Mart from hiring undocumented workers would be much more effective.   I used a quote from this article in my essay.

 

Sara Ibrahim, Lee Bargerguff, Mark Krikorian, and Rachel Canty, Panel: United States Border Control and the Secure Fence Act of 2006, 59 Administrative Law Review. 569 (2007).

This was a symposium on immigration reform and border security in the United States.   The panel of various experts in immigration reform and border security offered varying analysis with one main theme: more can be done to ensure a more efficient and safe border between the United States and Mexico. All panelists urged that the Mexican-American border region is woven together by cultural, economic, and family ties.   This annotation was focused on the views of two specific panelists: Sarah J. Ibrahim, the national policy coordinator for Project Voice, a human rights initiative, and Mark Krikorian, Executive Director of the Center for Immigration studies in Washington DC.

Ms. Ibrahim’s viewed the proposed fence as impeding on human rights and destroying families in the process.   In order for effective boarder control, the communities across the region need to be treated with respect and dignity.   According to Ms. Ibrahim, the recent boarder buildup has severed the heart of the region. Mr. Krikorian suggested that modern fencing can be remarkably effective in securing the boarder by delaying an individual who attempts to gain illegal entry in the United States. While a determined individual may eventually overcome the fence as an obstacle, the fence allows border patrol more of a response time for known breaches.

 


Other

Adalberto Aguirre, Jr., Mexican Border Crossers: The Mexican Body in Immigration Discourse, 35(4): Journal for Social Justice 99-106 (2009). Total Pages Read: 6

Adalberto Aguirre is a Professor in the Sociology Department at the University of California, Riverside. He is the author of various books and articles on such topics as stratification and inequality, formal organization, sociology of education, sociolinguistics and psycholinguistics. In Mr. Aquirre’s article he views the symbolic aspects of a wall on the Mexican-American border.   Stating that the border serves as a burying ground for Mexicans crossing into the United States Illegally.

Again, while not directly addressing the issue of whether a fence is efficient at preventing illegal immigration, Mr. Aguirre sheds light on the physical dangers of crossing into the United States, and the symbolic representation has a wall or fence has on foreign relations with Mexico. I enjoyed reading this non-law source because at the very least it was interesting to look at the fence from a sociological perspective.

 

 

Emil B. McCain, Evidence of Resident Jaguars (Pantha Onca) in the Southwestern United States and the Implications for Conservation, 89(1):1-10 Journal of Mammalogy, American Society of Mammalogists. (2008).   Total Pages Read: 2

An article taken from the Journal of Mammalogy stresses the fragmentation consequences of the United States jaguar population due to the proposed Mexican-American border fence.   Although jaguars are typically found in the rainforests of Central and South America, the species have been historically known to roam into the arid southwestern United States.

The breeding ground for the northernmost population of Jaguars is concentrated at the seam of the Aros, Bavispe, and Yaqui Rivers, 200 kilometers south of the Mexican-American border. In the past 20 years, a growing number of jaguars have been spotted in Arizona and New Mexico, and now are part of a healthy eco-environment. Constructing a fence that separates these two regions would ensure the fragmentation of the now native jaguar population, and ultimately lead to an overall decline in the Jaguar population. The local conservation of an overall declining jaguar population (world-wide) is extremely important to prevent species extinction.



[1] 8 U.S.C.A § 1103

[2] Perez Jr at 49

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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