1. Defenders of Wildlife v. Chertoff

The primary case evincing rebellion against the powers bestowed upon the Secretary of the DHS under the IIRIRA is Defenders of Wildlife v. Chertoff.³³ In Defenders, the plaintiffs challenged the constitutionality of the Secretary’s waiver of federal laws, as permitted under Section 102 of the REAL ID Act.³⁴ Here, the plaintiffs initially alleged that the wall construction infringed upon “‘a unique and invaluable environmental resource’ and ‘one of the most biologically diverse areas of the United States.’”³⁵ Due to the possible irreparable harm that a fence could cause, the plaintiffs sought and received emergency injunctive relief to delay construction of the fence.³⁶ However, approximately two weeks following the court’s injunctive relief, Secretary Chertoff “published a notice in the Federal Register waiving NEPA, the Arizona-Idaho Conservation Act, and eighteen other laws with respect to the construction of the…fence under the authority granted to him by Section 102 of the REAL ID Act of 2005.”³⁷ Subsequent to the Secretary’s waiver, the plain-tiffs amended their complaint to argue that the waiver authority of the REAL ID Act violated Articles I and II of the Constitution “because it impermissibly delegates legislative powers to the DHS Secretary, a politically-appointed Executive Branch official.”³⁸

Consequently, the sole issue the court tackled was “whether the Secretary’s waiver under the REAL ID Act [was] constitutional.”³⁹ Here, the plaintiffs, in reliance upon Clinton v. City of New York,⁴⁰ argued that the waiver provision “provides the DHS Secretary with roving commission to repeal, in his sole discretion, any law in all 50 titles of the United States Code that he concludes might impede construction of a border wall.”⁴¹ The Court, in Clinton, “struck down the Line Item Veto Act of 1996…because the Court found that the Act -‘[i]n both legal [and] practical effect’- allowed the President to amend Acts of Congress by repealing portions of them.”⁴² The plaintiffs in Defenders paralleled Clinton to their case because “[t]he power granted by Section 102 of the REAL ID Act to the Secretary of DHS to ‘waive’ the applicability of any law that would otherwise apply to border wall and fence construction projects is unmistakably the power partially to repeal or amend such laws.”⁴³ This power, the plaintiffs argued, was therefore an “impermissible exercise of legislative authority.”⁴⁴

While the plaintiffs’ argument was strong, the Defenders court summarily dismissed the parallel to the Clinton line item veto case. The court stated that the REAL ID Act’s waiver differed from the Clinton case because here, the “Secretary has no authority to alter the text of any statute, repeal any law, or cancel any statutory provision, in whole or in part.”⁴⁵ Further, the court rejected the general argument propounded by the plaintiffs that the waiver authority violated the separation of powers principle because the court found that Congress acted well-within its duties to delegate its legislative power with sufficient guidance and that this guidance was made clear with the language of “necessary to ensure expeditious construction of the barriers and roads under [Section 102 of IIRIRA].”⁴⁶ Finally, the court refused to entertain the plaintiffs’ last argument proposing that this waiver was unprecedented and too broad in effect:

[t]he Court concludes that it lacks the power to invalidate the waiver provision merely because of the unlimited number of statutes that could potentially be encompassed by the Secretary’s exercise of his waiver power. Rather, under the nondelegation doctrine, the relevant inquiry is whether the Legislative Branch has laid down an intelligible principle to guide the Executive Branch, not the scope of the waiver power. Therefore, based on controlling Supreme Court precedent, the Court finds that the REAL ID Act’s waiver provision is a valid delegation of authority.⁴⁷

Here, the court noted the deference judges usually bestow to both the executive and legislative branches when the subject matter involves foreign affairs, immigration control, and border concerns: “the [e]xecutive has ‘a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.’”⁴⁸ Further,

When Congress legislates on foreign affairs or immigration control, “it is not dealing alone with a legislative power. It is implementing an inherent executive power…. [b]ecause these powers are ‘also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise [them]. . . .’”⁴⁹ This purported deference to the other government branches was the ‘nail in the coffin’ for the petitioners’ argument and the District Court resolved the case by dismissing it with prejudice.⁵⁰ Finally, as the IIRIRA limits appellate jurisdiction to the Supreme Court, petitioners had one final chance and filed a Petition for Certiorari. However, the Court denied the petition and the case remained ‘dead in the water.’

2. Save Our Heritage Organization v. Gonzalez

The next case to challenge the constitutional delegation of power to DHS Secretary Chertoff, was Save Our Heritage Org.⁵¹ Here, petitioners, citing two separate barriers, one in San Diego, California and the other, near Yuma, Arizona, argued that the “Government neglected to comply with several statutes and that DHS Secretary Michael Chertoff’s waiver of those statutory requirements [was] unconstitutional.”⁵² The District Court, in tackling the constitutionality of Congress’ delegation of authority, noted that the court must look to whether the “statute in question sets forth an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.”⁵³ Noting the broad power Congress has in this delegation and the usual judicial deference bestowed upon this delegation, the court added that “a statute need only ‘clearly delineate[] the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.’”⁵⁴

The District Court harkened back to Defenders of Wildlife in finding the waiver power constitutional.⁵⁵ In Defenders, the judge not only found the directive of “installing additional barriers and roads” (general policy) to be “clearly delineated,” but also that the “boundaries” were clearly defined “by Congress’ requirement that the Secretary may waive only those laws that he determines ‘necessary to ensure expeditious construction.’”⁵⁶ This court found Defenders persuasive and noted the significant authority of the executive branch in the area of foreign affairs and immigration even before Congress made this legislative delegation and held the barriers in San Diego and Yuma to be well within this “independent constitutional authority.”⁵⁷ In sum, the court, persuaded by Defenders, found the waiver power to be constitutional.⁵⁸

3. County of El Paso v. Chertoff

Third and last, the holding of County of El Paso⁵⁹ suffered a similar fate to Defenders and Save Our Heritage. In County of El Paso, the plaintiffs challenged two waivers under the REAL ID Act following two waivers by Secretary Chertoff, nulling dozens of federal laws covering over 500 miles of the U.S. border with Mexico.⁶⁰ The plaintiffs argued three specific constitutional issues against the “Waiver Legislation: (1) a nondelegation challenge pursuant to Article I, Section I, of the Constitution, (2) a Presentment Clause challenge pursuant to Article I, Section 7, of the Constitution, and (3) a federalism challenge pursuant to the Constitution’s Tenth Amendment.”⁶¹ The District Court unsurprisingly rejected all three arguments: (1) regarding the nondelegation challenge, the court stated that Congress properly delegated its authority and provided the Secretary with an intelligible principle that directed his waivers for the purpose of expeditious “construction of physical barriers and roads of the nation’s borders;”⁶² (2) concerning the Presentment Clause, the court found no violations because, unlike the relevant laws in Clinton’s line item veto in Clinton v. New York, here, the laws waived under Section 102 still applied outside the Secretary’s waiver;⁶³ and finally, (3) relating to a violation of the Tenth Amendment, the District Court found no issue because of Section 102’s clear intent to preempt state and local laws “which would interfere with Congress’s objective to expeditiously construct [a] border fence.”⁶⁴ Thus, the court found the actions of Secretary Chertoff to be constitutionally sound and further, that the Congressional delegation survived constitutional challenge. Following this case, the plaintiffs petitioned the Supreme Court for review, but again, the Court declined the petition.⁶⁵

4. Discussion

Clearly, the judiciary defers to Congress’ delegation authority, particularly in matters concerning foreign affairs and immigration. Well recognized is the idea that “Congress would be guilty of delegating the legislative power only if it gave something approaching blank-check legislative rulemaking authority to an agency. As long as an agency’s discretion is somewhat confined… then there has been no delegation of ‘legislative power.’”⁶⁶ This deference walks a fine line between constitutional and unconstitutional delegation of power. To illustrate, Defenders established strong precedent when it tackled the constitutionality of the waiver power. However, this note argues that the court erred when it did not find the petitioners’ comparison with Clinton’s line item veto to be relevant. The court dismissed the Presentment Clause argument because the waiver did not equate to a partial repeal.⁶⁷ Notwith-standing the court’s findings, the Secretary’s actions, in effect, void any law, without limit, and bypass all constitutional “requirements for enacting and repealing laws.”⁶⁸ On its face, this delegation violates the Constitution. Further, this waiver, while it supposedly has an intelligible principle, the phrase “necessary to ensure expeditious construction of the barriers and roads…” in Section 102 is hardly intelligible and allows the Secretary, in his or her sole capacity as an appointed-executive official, to waive infinite laws, any time and for any perceived obstruction. This power is a far cry from the original intent of the 1996 IIRIRA that specifically expressed the area where the border fence was to be constructed and what laws could be waived in this specific pursuit. Neeley, a licensed attorney and conservation policy director for Sky Island Alliance, astutely notes that while the Defenders opinion ignores the un-precedented scope of the waiver and argues it had no legal right to strike this delegation of authority, this was (and is) precisely the kind of delegation that a court may strike.⁶⁹

In addition to this broad waiver, limits on judicial review are arguably contrary to the nondelegation doctrine as they interfere with impartial review and thus it remains “impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed.”⁷⁰ Because Section 102(c) limits petitions to constitutional challenges in District Court, the number of possible claims is severely limited to aggrieved parties. Further, appellate constraint challenges the constitutionality of Section 102 because the Supreme Court has discretion to hear a case and has, thus far, rejected cases challenging waiver authority, leaving parties effectively without appellate recourse. In sum, this caselaw discussion evidences the troubling trend in judicial deference regarding the REAL ID Act’s expansive delegation of power to the DHS Secretary. Consequently, to successfully prevent further southern border wall construction, a different legal track must be employed. This legal track finds its place under Article VI of the Constitution regarding treaties and their authority as “supreme law of the land.”

1. U.S. Treaty Authority, its Relationship to Federal Law, and the Power of the Vienna Convention

From the founding of the United States, international treaties have shaped the laws of the country. To illustrate, following the American Revolution, the United States entered into the 1783 Treaty of Peace with Great Britain.⁷¹ Unfortunately, this treaty faced much difficulty as the states refused to honor the obligations outlined and in fact, abjectly opposed the terms.⁷² However, the following language, dictated in the Supremacy Clause of Article VI, Clause 2 of the United States Constitution, made treaties supreme over state law, required judges to enforce a treaty’s terms, and effectively remedied stateled obstruction:⁷³

[t]his Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Notably absent from this language is an express clarification of which U.S. law, federal or treaty, reigns supreme. However, the Supreme Court explained, “[b]ecause they enjoy the same constitutional dignity as statutes, treaties will even displace earlier inconsistent federal statutes, although the reverse is also true under the “later-in-time-rule.”⁷⁴ This authority is critical when balancing the power between federal statutes and treaties because it evidences the strength of treaty law. Applicable to this discussion, the original IIRIRA established in 1996 obviously came after the 1944 and 1970 treaties. However, as originally dictated, the terms between the IIRIRA and the treaties were not overtly inconsistent (although, it may be argued that, even then, the San Diego wall influenced the rights of Mexico under the treaties).

Conversely, today, because the amended IIRIRA gives unfettered control to the DHS Secretary and because, to date, the Secretary used this power to waive countless laws without regard to current treaties, there is undoubtedly a conflict between the treaties’ terms and the federal law. Harkening to the Supreme Court’s words weighing the authority of inconsistent language between an older law and new legislation, it may still be argued that the intent behind the IIRIRA, as originally drafted and amended, was not to supersede the treaties. Because breaking treaties is not often advisable absent material breach or extenuating circumstances and because Mexico and the United States have a longstanding symbiotic relationship, it cannot be rationally deduced that the treaties were so easily broken over a border wall. Further, per the Vienna Convention (discussed infra), for a party to withdraw or terminate treaty obligations, specific steps must be followed, including notification to other parties to the treaty.⁷⁵ Thus, as will be shown, reneging obligation under the 1944 and 1970 treaties is not an easy feat.

Under U.S. treaty law, there are two kinds of treaties: self-executing treaties and non-self-executing treaties.⁷⁶ Arguably, the supremacy provision in the Constitution applies to both forms of treaties. However, for this note, we need not be overly concerned with this academic debate as both the 1944 and 1970 treaties are self-executing⁷⁷ and undoubtedly possess power as the “supreme law of the land.” Though, when discussing treaty law, it is helpful to acknowledge the means used to differentiate self-executing from non-self-executing treaties:

[f]irst, a treaty may be held to be non-self-executing if a court finds that was the ‘intent’ of the treaty makers as expressed in the treaty itself [i.e. language such as ‘shall be ratified and confirmed’, under caselaw, indicates intent for future action] …Second, the treaty may contemplate an obligation that constitutionally requires legislation to take effect, for example if the treaty purports to criminalize behavior or provide appropriations. Third, treaties may be incapable of or incapable of our inappropriate for judicial action…Finally, treaties have been held to be non-self-executing because they fail to provide a right of private action.⁷⁸

Applying this standard to the two relevant treaties, both the 1944 and 1970 treaties are clearly self-executing because at the beginning of both treaties, the language expressly states that two-thirds of the Senate ratified the treaty along with the President.⁷⁹ There is no language of intent to act in the future to ratify the document, the documents are not vague, and there is no language indicating that legislative action must be completed for the treaty to be fulfilled. Summarily, the 1944 and 1970 treaties are self-executing. Of final note, and critical to the labeling of the two treaties as self-executing, in the context of opposing President Trump’s border wall, “[a]lthough foreign affairs considerations may require respect for the reasonable interpretative views of the executive branch, the Supreme Court has declared itself the final arbiter of the meaning of self-executing treaties.”⁸⁰ Thus, “[b]ecause self-executing treaties fall within the judicial power of Article III, federal courts… have the final authority over their interpretation and application.”⁸¹ Consequently, when investigating the terms and objectives of the treaties, courts must uphold the bilateral treaties should the International Boundary and Water Commission fail to resolve disputes between Mexico and the United States.

Before looking into the 1944 and 1970 treaties, a discussion of treaty law would be remiss without mention of the 1969 Vienna Convention.⁸² The Vienna Convention represents a “formal expression of customary international law anent to the obligations of States in honoring treaty obligations.”⁸³ For members of this convention, international agreements between countries carry great weight in the international community and while the United States did not ratify the Vienna Convention, it is a signatory of the document.⁸⁴ Similarly, Mexico signed, but ratified the Convention, arguably making the Vienna Convention an authority for both nations to look to when adhering to (or disregarding) treaties.⁸⁵

In their article, Mumme, a Political Science Professor, and Ibáñez, a Professor of Public Administration, note that several articles of the Vienna Convention apply to the treaties between Mexico and the United States: “[f]irst, article 4 indicates that ‘the Convention applies only to treaties and agreements which are concluded by States after the Convention enters into force with regard to such States.’”⁸⁶ Thus, while neither the 1970 Boundary Treaty nor the 1944 Water Treaty is officially sheltered by the Vienna Convention, customary international law expresses that the Convention applies to these treaties.⁸⁷ However, the United States could argue that because the two treaties entered into force following signature, the Convention fails to cover either treaty. Further, the United States may reason that “the Vienna Convention limits the circumstances that justify any unilateral exclusion from the obligation of a treaty to which a State is a party.”⁸⁸ Relating to the ability for the United States to avoid obligations of a treaty controlled by the Vienna Convention,

Article 62, section 1 stipulates: A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of the treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty. Article 62, section 2 states: A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty: (a) if the treaty establishes a boundary; or (b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty. The combined effect of the provisions of articles 60 and 62 is to set a very high penalty and a very high bar to any party’s unilateral non-compliance with treaty obligations, even when the circumstances surrounding its application may have changed.⁸⁹

This section perhaps applies to both treaties and may dramatically limit the United States’ ability to renege from its obligations to maintain the boundary and adhere to water allowances. Thus, the United States shall not, even for a “fundamental change of circumstance[]”, ignore or abandon these agreements by unilaterally building a wall that interferes with boundary delineation and water flow. Further, even if the United States claims that national security concerns undermine the international treaties’ obligations, Article 46 stipulates that, “[a] State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.”⁹⁰

Here, “the United States has no basis for asserting a national security imperative for disregarding extant environmental and boundary treaty obligations to Mexico” and further, it does not appear that the United States claims “a fundamental change of circumstance with regard to any of the agreements under discussion.”⁹¹

In sum, treaties executed between Mexico and the United States, per the Vienna Convention and the Constitution of the United States, hold great weight and authority. This power cannot be easily ignored in the construction of a larger, more imposing border wall. Thus, courts must exercise great caution when balancing power between the amended IIRIRA and international treaty obligations and must soberly weigh the supposed goals of an untested border wall with the international community’s trust in the United States and its respective treaty commitments.

2. 1944 Water Treaty

The 1944 Water Treaty is an international agreement between the United States and Mexico. The treaty “allocates the waters of the two major international rivers between the two countries, stipulates the order of priorities for the use of these waters, provides for the construction of dams and other water infrastructure on the treaty rivers, and establishes a bi-national commission comprised of two national sections to oversee the Treaty’s application.”⁹² The treaty primarily focuses on the allocation of the Rio Grande and the Colorado Rivers:

In addition to annual water allocation, the treaty exempts water delivery given “extraordinary drought or serious accident.”⁹⁴ Thus, if Mexico was unable to deliver to the United States its defined allocation, the agreement instructs how the nation may make up its water debt “at the end of one five-year cycle in the next five-year cycle.”⁹⁵

Since the ratification of the treaty, there have been various amendments and agreements tackling issues such as “operation and maintenance of cross-border sanitation plants, water conveyance during droughts, construction of dams, and water salinity problems.”⁹⁶ The Secretary of State usually adopts these amendments and agreements without Congressional or Senate action because these actions are “agreed to by the executive branch pursuant to the authority of the 1944 Water Treaty…” and “are considered binding agreements between the United States and Mexico....”⁹⁷ To illustrate, in Fall 2017,

Minute 319, facing expiration, was extended and renamed Minute 323, and “requires the United States to invest millions of dollars in water conservation projects in Mexico...and allows Mexico, which has no significant reservoirs in the Colorado basin, to store some of its water north of the border. In return, the U.S. will receive a portion of the Colorado River water to which Mexico has historically been entitled.”⁹⁸

Minute 323 also includes agreements of water allocation, pulse flows, and investments, all geared towards water conservation.⁹⁹ Because this minute is incorporated into the treaty, upon action by any U.S. president to pursue a southern border wall, should said wall interfere with this agreement, Mexico may petition the International Border and Water Commission (hereinafter IBWC).

Under the 1944 Water Treaty, the IBWC implements and enforces the agreement’s terms. The IBWC “is an international body consisting of U.S. and Mexican Sections, each led by a commissioner, two principal engineers, a legal adviser, and a foreign affairs secretary.”¹⁰⁰ The United States commission, the USIBWC, located in El Paso, Texas, “is a federal agency that operates under the foreign policy guidance of the Department of State” and whose commissioner is presidentially appointed.¹⁰¹ When the two nations enter into dispute, the dispute is referred to the IBWC and if the commission is unable to resolve the disagreement, “the dispute is to be settled through diplomatic channels between the United States and Mexico. Article 24 also provides that the countries may seek recourse in any ‘general or special agreements which the two Governments have concluded for the settlement of controversies.’”¹⁰² While this recourse has not been historically accessed, should U.S. courts continue to rely on the DHS Secretary’s waiver power in finding the Secretary’s actions to be constitutional, it is likely that this treaty will be infringed upon and Mexico will petition the IBWC.

The 1944 Treaty organizes the use of water into a hierarchy: first, domestic and municipal use; second, agricultural and stock-raising; third, electric power; fourth, other industrial uses; fifth, navigation; sixth, fishing and hunting; and last, any other beneficial uses, as determined by the Commission.¹⁰³ Notably absent from this list is water quality. However, as the first-ranked use is for domestic and municipal purposes, a rational reading would indicate that delivered water must be fit for human consumption. Nonetheless, this omission led to a long-standing dispute between the nations and greatly challenged the resolution powers of the IBWC. To illustrate, in the 1960s, the United States delivered to Mexico, water with excessive salinity levels.¹⁰⁴ While the United States argued that Mexico should not complain about the quality of water because the nation received more water than dictated by the treaty, Mexico cited Article 3 of the 1944 Water Treaty, stating that Mexico’s water purposes included domestic and agricultural use and there-fore, the water delivered did not appropriately qualify under the treaty’s terms.¹⁰⁵ Following several failures in both amendments and agreements, the IBWC resolved the salinity issues in 1973 and required that the United States maintain lower salinity levels, aid in rehabilitating the damaged Mexican lands, and build additional drainage channels.¹⁰⁶

The salinity crisis and the long-fought final solution to this water quality issue should dissuade the United States from building a wall without environmental impact studies. Because “[t]he proposed wall could adversely affect three major rivers - the Rio Grande, Colorado, and Tijuana - and their tributaries that crisscross the border…”, the potential long-term costs, not only to Mexico, but to the United States, could be astronomic.¹⁰⁷ In the salinity case, because the United States ignored the water quality problem for many years, the IBWC found the nation liable for the economic losses to Mexico and responsible for building new infrastructure. Finally, prior to considering additional border wall construction, the United States should remember the long-standing, expensive salinity dispute in light of Article 17, relating to channels and international rivers states. This article states that “[t]he use of the channels of the international rivers for the discharge of flood or other excess waters shall be free and not subject to limitation by either country….”¹⁰⁸ Clear from this article is the prohibition of any fence or wall built unilaterally that impairs water flow. Because the DHS Secretary is exempt from performing environmental studies, any construction absent from said study will impact relevant international treaty waters.

Prior to summarizing the legal arguments against further southern border wall construction, in light of treaty law, this note turns to the 1970 Boundary Treaty and examines this treaty in relation to the amended IIRIRA. By looking at the 1970 Boundary Treaty, in conjunction with the 1944 Water Treaty, any question left unanswered on the legality of the United States unilaterally building a border wall, absent consultation with Mexico, will be satisfied.

3. 1970 Boundary Treaty

The boundary between the United States and Mexico is dynamic and flowing. It is neither a straight line, nor is it solely on dry land. Rather, per the 1970 Boundary Treaty, the border, as agreed upon by the two countries, demarcates a boundary “that falls into the Rio Grande’s riverbed.”¹⁰⁹ Per Mumme, the border is established along a “complex place geographically [and] traverse[s] through numerous ecosystems.”¹¹⁰ This boundary line is not conducive for a solid wall. A fact made evident by fence construction under the Bush administration, performed in direct conflict with Mexico’s wishes. Consequently, the present border fence is a constant reminder to the Mexican Government that the United States failed to comply with treaty agreements.¹¹¹ Here, tensions are already peaked and “[i]f the U.S. government goes for a major construction project at the border without consulting, then that would be taken as a slap in the face by the Mexican Government.”¹¹²

Despite the 1970 Boundary Treaty being viewed as “one of the most important agreements between the United States and Mexico in the twentieth century,” both past and present presidential administrations conveniently ignore(d) the terms of the treaty, which include qualifications on building security infrastructure along the U.S. boundary.¹¹³ For example, Article IV of the Boundary Treaty expressly “restricts the parties from unilaterally developing, without consent, any works that would impede the drainage of water to the rivers or otherwise alter the locations of the boundary that follows the center of the rivers.”¹¹⁴ This article further demands that, “[i]f the Commission [IBWC] should determine that any of the works constructed by one of the two Contracting States in the channel of the river or within its territory causes such adverse effects on the territory of the other Contracting State, the Government of the Contracting State that constructed the works shall remove them or modify them and, by agreement of the Commission, shall repair or compensate for the damages sustained by the other Contracting State.”¹¹⁵ Should Mexico assert its rights with the Commission, the United States may face large economic repercussions, be forced to remove any constructed wall found to violate the treaty, and repair all damage done as a result of the construction.

Looking back to the 1944 Water Treaty and its terms on water allocation, the building of a border fence under President Bush and the future plans to build a wall under President Trump violate, not just one, but two treaties. Notably, the 1970 Treaty allows for construction if the goal is to prevent erosion or to build channels to maintain the integrity of the “limitrophe channel.”¹¹⁶ However, this provision is limited in scope because the IBWC must approve of the assembly and further, any construction must be done on the respective nation’s own land.¹¹⁷ Clearly, the fence erected under President Bush failed to adhere to these requirements, for it was placed arbitrarily (where convenient), and the Commission was not consulted prior to said fence’s construction. In fact, the “DHS’s construction of barriers along the lower Rio Grande River as authorized by the 2006 Secure Fence Act prompted the U.S. section of the IBWC to issue a note to the DHS reminding it of these treaty obligations….”¹¹⁸ Unfortunately, this note was largely ignored by the DHS and due to this precedent, a reasonable forecast of the border wall proposed under President Trump is the dubiousness that future construction will respect these treaty obligations. It is clear, prior to September 11, 2001, the 1970 Boundary Treaty did not face great challenge. Nonetheless, following the terrorist attack, once the U.S. Government concluded that security necessitated a larger and longer southern border wall, the DHS illegally set aside the terms of two international treaties and currently plans to continue this trend under the Trump administration’s plans for a new border wall.

4. Discussion

In sum, under treaty law, President Trump’s proposed border wall is not legally sound. Because the 1944 Water Treaty and the 1970 Boundary Treaty are self-executing, their terms undoubtedly reign supreme per the Supremacy Clause. Under the Supremacy Clause, no state law may interfere with the treaties’ terms. Second, regarding the 1944 Water Treaty, both countries are obligated to deliver to the other, a clearly defined allocation of water. Absent drought or serious accident, water must be delivered and compatible with the hierarchy of water use. This obligation is not easily altered. Per Vienna Convention Articles 60 and 62, discussed supra, a country is severely limited in what justifies a failure to adhere to treaty obligations. The United States has yet to acknowledge the probable impacts a border wall may have upon water delivery to Mexico and further, has no justifiable reason to one-sidedly alter the treaty’s terms through unilateral action. When combined with the newly signed Minute 323, what is clear is that relevant Mexican and American groups concerned with and most familiar with the 1944 Water Treaty’s obligations, wish for the bi-lateral duties to continue and strengthen.

Notwithstanding this evident desire, President Trump, via Executive Order 13767 and the DHS Secretary, through numerous waivers of environmental laws, equally ignore this contractual international relationship.

Along a similar vein, the 1970 Boundary Treaty established a border between the two countries that includes a ‘line’ running through international waters. Unfortunately, the Bush administration established precedent for encroachment of this boundary by physical construction and a fair prediction is that the Trump administration and the DHS, will likely follow suit and run afoul with the Vienna Convention. Because the 1970 Boundary Treaty terms debatably fall under the control and terms of the Vienna Convention, the Convention’s restrictions apply to any thought of treaty revocation and/ or unilateral action. If the United States continues to disturb these treaties, not only will relations with Mexico sour, but the international community will hesitate to enter and trust treaty agreements with the United States. Finally, despite the IIRIRA being drafted and amended well after the 1944 Water Treaty and the 1970 Boundary Treaty were ratified and notwithstanding the language of the federal law impliedly conflicting with the treaties’ obligations, the waiver of power bestowed upon the Secretary must not be interpreted as purposefully infiltrating and defeating the treaties’ language. Nowhere in the IIRIRA’s language, either originally written or subsequently amended, does it state that its purpose was to override the international treaties and therefore, the President cannot make such a leap to believe that, absent expressly clarifying such a break, that the IIRIRA intentionally interferes with treaty obligations.