Is Michael Chertoff above the law?
- (Challenge to DHS Secretary Chertoff's order suspending environmental laws
to facilitate the building of the US border fence. SR)
Power to Build Border Fence Is Above U.S. Law
By Adam Liptak
New York Times
April 8, 2008
Securing the nation's borders is so important, Congress says, that Michael
Chertoff, the homeland security secretary, must have the power to ignore any
laws that stand in the way of building a border fence. Any laws at all.
Last week, Mr. Chertoff issued waivers suspending more than 30 laws he said
could interfere with "the expeditious construction of barriers" in Arizona,
California, New Mexico and Texas. The list included laws protecting the
environment, endangered species, migratory birds, the bald eagle,
antiquities, farms, deserts, forests, Native American graves and religious
The secretary of homeland security was granted the power in 2005 to void any
federal law that might interfere with fence building on the border. For good
measure, Congress forbade the courts to second-guess the secretary's
determinations. So long as Mr. Chertoff is willing to say it is necessary to
void a given law, his word is final.
The delegation of power to Mr. Chertoff is unprecedented, according to a
report from the Congressional Research Service. It is also, if papers filed
in the Supreme Court last month are correct, unconstitutional.
People can disagree about the urgency of border security and about whether
it is more or less important than, say, the environment. Congress is
entrusted with making those judgments, and here it has spoken clearly. In
the process, it has also granted the executive branch more of the sort of
unilateral power the Bush administration has so often claimed for itself.
No one doubts that Congress may repeal old laws through new legislation. But
there is a difference between passing a law that overrides a previous one
and tinkering with the structure of the Constitution itself. The
extraordinary powers granted to Mr. Chertoff may test the limits of how much
of its own authority Congress can cede to another branch of the government.
Mr. Chertoff explained the reasoning behind the law in a news release last
week. "Criminal activity at the border," he said, "does not stop for endless
debate or protracted litigation."
Mr. Chertoff has issued three similar waivers, and a challenge to the
constitutionality of one of them has just reached the United States Supreme
Court. If the court decides to hear the case, its decision will almost
certainly apply to last week's waivers as well.
The case was brought by two environmental groups, Defenders of Wildlife and
the Sierra Club. They sued Mr. Chertoff last year over his decision to
suspend 19 laws that might have interfered with the construction of a border
fence in the San Pedro Riparian National Conservation Area in Arizona.
Congress, the groups said, had given Mr. Chertoff too much power.
"It is only happenchance that the secretary's waiver in this case involved
laws protecting the environment and historic resources," the groups told
Judge Ellen Segal Huvelle of Federal District Court in Washington. "He could
equally have waived the requirements of the Fair Labor Relations Act to halt
a strike, or the provisions of the Occupational Safety and Health Act in
order to force workers to endure unsafe working conditions."
(Happenchance? You don't see that word every day, and certainly not in a
The groups said Congress cannot hand over unbridled power to the executive
branch even as it cuts the courts out of the picture. They relied mostly on
a 1998 Supreme Court decision striking down the Line Item Veto Act, which
had allowed the president to cancel parts of laws.
In December, Judge Huvelle rejected the challenge and allowed construction
to proceed. She said she had no jurisdiction to decide whether Mr. Chertoff
was correct in saying the waivers were necessary, and she ruled that the
delegation of power to him was constitutional.
"The 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," Judge Huvelle wrote.
A petition asking the Supreme Court to hear the case was filed three months
Did you notice the missing step? In addition to forbidding judges from
second-guessing Mr. Chertoff's decisions, Congress forbade federal appeals
courts from becoming involved at all. After losing before Judge Huvelle, the
groups' only recourse is to hope the Supreme Court decides to hear their
In their petition, the environmental groups said the Supreme Court had never
upheld a broad delegation of power like that given to Mr. Chertoff without
the possibility of judicial review of executive branch determinations. Nor,
they said, has any appeals court.
It is the combination of those two factors - the broad granting of power to
the executive branch and cutting the judicial branch out of the process -
that makes the 2005 law so pernicious, the groups say.
The government's response is due next week. In a brief filed in the district
court last year, Justice Department lawyers told Judge Huvelle that the
urgency of border security must trump other interests. They added that
Congress may delegate particularly broad powers in the areas of national
security, foreign affairs and immigration because the Constitution gives the
executive branch great authority in those areas.
The line-item veto decision does not apply, the government lawyers said,
because Mr. Chertoff is not repealing laws for all purposes, just suspending
them for his fences.
It is true, of course, that Congress gave up its powers here voluntarily.
But Justice Anthony M. Kennedy had a response to that point in his
concurrence in the line-item-veto case.
"It is no answer, of course, to say that Congress surrendered its authority
by its own hand," he wrote. "Abdication of responsibility is not part of the
Justice Kennedy made a broader point, too, one perhaps more apt today than
it was 10 years ago.
"Separation of powers was designed to implement a fundamental insight," he
wrote. "Concentration of power in the hands of a single branch is a threat
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