North Dakota senator John Hoeven, one of the co-writers of the supposedly tougher border enforcement amendment to the Gang of Eight immigration reform bill, appeared Wednesday night on radio host Hugh Hewitt's nationally syndicated show. Once Hewitt began questioning Hoeven on the details of the border fence provisions of his amendment, the Republican senator had a tough time responding:
Hugh Hewitt: But Senator, I want to stay focused just on the fence, if you don’t mind, in our few minutes.
John Hoeven: Okay, all right. Yeah.
HH: At Section 5b, it says the Southern Border Fencing Strategy, not later than 180 days after the date of the enactment of this act, the secretary of Homeland Security shall establish a strategy to be known as the Southern Border Fencing Strategy, to identify where 700 miles of fencing, including double layer fencing, infrastructure and technology, including ports of entry, should be deployed along the southern border. First question, of those 700 miles, how many miles must be double layered?
JH: Well, it requires what’s called the pedestrian fencing. That’s the minimum, okay? But it requires 700 miles of fencing, and then you’ve got about a 2,000 mile border there, obviously. The Secretary can determine where on that 2,000 miles the fence is most effective, or DHS can, but they have to make it 700 miles of fence. It can’t be the vehicle barricades.
HH: But is it fair to say that there is a zero mile minimum for double layered fencing?
JH: It doesn’t. It has to be at least the pedestrian fencing. It doesn’t specify that it has to be the double layer. That’s correct, Hugh.
HH: Okay. Now how big does the pedestrian fencing have to be?
JH: I’d have to look back at the specs, but it’s, you know, I mean, it’s impressive fencing. It’s not the double layer you’re talking about, but it’s a significant barrier.
HH: Now Senator Hoeven, there aren’t any specs. This is my problem. I’ve read…
JH: No, see, there’s existing pedestrian fence on there, and so when we say pedestrian fence, it has a definition as to the fencing that’s already there. So…
HH: But it doesn’t, it actually doesn’t. I’ve been through the law very carefully. I bring my lawyer’s, not my MBA to it, but I look at it as a Constitutional lawyer. They actually don’t have to do anything. In fact, I was going to ask you, what if they don’t turn in a strategy in 180 days? What’s the law’s penalty?
JH: They’d be breaking the law.
HH: But what’s the penalty?
JH: Well, you’d obviously have to enforce the law, but I mean, it’s like, it would be like saying any law, what…they have to follow the law. They’re required to follow the law, and we would undertake an action to make sure that they do. That’s…
HH: But there is no…
JH: Just like we would for any, you’re asking me a, I think, legal question there, obviously, but just like any law…
HH: Well, there is no citizen standing.
JH: I mean, that would be saying any law we passed, what if they don’t bother to enforce it.
HH: Well, if you and I don’t pay our taxes, the IRS, especially we conservatives, get a phone call from them, and you go to jail. If the Secretary doesn’t do this, in the same way that the 2006 border fencing law was never implemented, nothing bad happens, and no citizen has standing to sue, because there’s no citizen standing provision.