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 Constitution.
“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 command…”
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 Wildlife.
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 officials.
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.
March 20th, 2008 at 4:10 pm
yeah. as we watch the handgun debate unload, it is worth asking where this appeal could lead. i’m glad y’all went the extra step and queried the defenders’ attorney. still, i can’t help feeling there are more potential nasty outcomes than dreher is willing to suppose.
March 27th, 2008 at 7:15 pm
[…] is to have 670 miles of fence built along the Southern border by December 31, 2008. In an Observer blog last week, we wrote about lawsuits filed by Sierra Club and Defenders of Wildlife challenging […]