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Unlimited Power for Chertoff?

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  • Greg Cannon
    http://www.texasobserver.org/blog/index.php/2008/03/19/unlimited-power-for-chertoff/ Unlimited Power for Chertoff? March 19th, 2008 at 3:15 pm It came as a
    Message 1 of 1 , Mar 20, 2008
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      Unlimited Power for Chertoff?
      March 19th, 2008 at 3:15 pm

      It came as a shock to us last year when we learned
      that Homeland Security Secretary Michael Chertoff has
      the authority to waive most any law that gets in the
      way of construction of a wall along the U.S.-Mexico
      border. It also precludes judicial review if someone
      asserts that Chertoff is overstepping his bounds. The
      power was stealthily given to him when Congress passed
      the REAL ID Act of 2005.

      On Monday the Sierra Club and Defenders of Wildlife
      filed a petition asking the U.S. Supreme Court to
      review the authority. Here’s the press release. The
      filing, a pdf of which can be found here, argues that
      the REAL ID Act’s waiver provision contravenes the
      system of checks and balances guaranteed in the

      “Not only does the waiver authority extend to
      every federal, state, and local legal requirement, but
      the statute provides no right to a judicial
      determination that the Secretary’s exercise of this
      authority complies with the standard established by
      Congress. For that reason, this broad delegation of
      authority violates the principles recognized in the
      well-established nondelegation doctrine. The unchecked
      and unreviewable authority to waive any federal law in
      this case also violates the Constitution’s clear

      So far, Chertoff has used his authority to complete a
      wall near San Diego, to remove vehicle barriers and
      replace them with a wall in the Barry M. Goldwater
      Range in Arizona, and to build a border wall within
      the San Pedro Riparian National Conservation Area.
      There is speculation that Chertoff plans to waive
      environmental laws in Texas to build the wall as well.
      To date that has not happened but a controversial
      environmental impact statement may be a precursor to
      such action.

      We were curious, given the radical turn of this
      Supreme Court, whether it might create some really bad
      law if the justices took this one on. We received a
      thoughtful response to that question from Bob Dreher,
      vice president for conservation law with Defenders of

      First, we think it unlikely that the Court would
      grant review just to affirm the district court; if a
      majority of the Justices think the district court got
      it right, they will most likely just vote to deny
      review, leaving the decision as it stands. If they
      vote to grant review, therefore, we would view that as
      a positive sign that at least 4 Justices think there
      may be a serious constitutional problem with the
      waiver provision of the Real ID Act. The Court may
      nonetheless decide that issue against us, but in that
      case all they will have done is to ratify Congress’s
      existing understanding of their ability to delegate
      this sort of waiver authority to Executive Branch

      The enviros are not the only ones concerned by the use
      of REAL ID to waive longstanding laws that protect
      public health and the environment. Connecticut Sen.
      Joe Lieberman wrote to Chertoff last December about
      the waiving of environmental laws to build a fence
      through the San Pedro conservation area in Arizona.

      Lieberman asked several questions, including this
      rather important one: In what circumstances will
      Chertoff use his new power to suspend laws?

      Chertoff responded (pdf here) with a lengthy letter
      that is well worth a read. The secretary’s answer
      reasserts his unilateral authority to a) determine
      where the wall is needed, b) judge its impact on the
      environment, and c) set the timeline by which it will
      be built. The best part perhaps is where Chertoff
      makes the argument that an enormous wall topped with
      bright lights through a conservation area will be good
      for the environment because it will deter trash and
      human waste from migrants who pass through.

      The irony to this whole dance is that even Chertoff
      has admitted that construction of a border wall is
      largely symbolic and will not have much impact on
      illegal immigration.

      by Jake Bernstein
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