The Texas Observer

Does Texas’ Child Protective Services have the legal authority to remove 463 children from the FLDS ranch in West Texas? Some lawyers representing the mothers and the removed children say that CPS is stretching its legal authority in this case.

Thirty-eight of the FLDS mothers filed an appeal with the Third District Court of Appeals in Austin on April 30th. They want the appellate court to return their kids. The mothers, represented by Texas RioGrande Legal Aid, contend that CPS and District Judge Barbara Walther — in seizing the children — violated the families’ due process rights.

At a hearing on April 17, CPS offered evidence of abuse against about 20 kids — and then argued that all 463 children were in danger. After that hearing, Judge Walther ruled the state could take custody of the kids.

In their brief to the appellate court, the FLDS mothers argue that the legal process at the April 17 hearing was a mess. They say they received no notice about the hearing, that some of the mothers weren’t even named in court papers, and filings weren’t made available to their attorneys, and that the courtroom was so full, most mothers weren’t even present when the custody of their kids was debated. They also argue that CPS didn’t present specific evidence to prove abuse against most of the mothers.

There is evidence that teen-aged girls were sexually abused at the ranch by older men. A CPS spokesperson says that 31 teen-age girls (ages 14-17) removed from the compound are either pregnant or have a child. Six of those girls have two kids. And two girls 17 or under have three kids. (Under Texas law, forcing a 15 year old to have sex with an older man is sexual abuse.)

Should evidence of abuse against a few families implicate everyone?

The short answer is yes. The Texas Family Code gives CPS the right to remove children in potentially abusive homes, even if they haven’t been abused yet. For example, if a mother doesn’t remove her children from a dangerous home, all the kids will be taken by CPS — even those who weren’t abused.

You can read the relevant sections of the family code here.

The law — specifically section 262 — says that a child should be removed if he or she would be in danger with the parent or guardian or if “continuation of the child in the home would be contrary to the child’s welfare.”

The key word there is “home.” The FLDS families lived on the same ranch, but in separate houses. The lawyers we’ve talked to who’ve been on the property all describe a town-like setting of separate houses and duplexes that are 1,000 to 1,500 feet apart.

These kids didn’t necessarily live in the same homes where abuse was taking place. CPS can’t remove a child just because they live next door to an abusive home. Some lawyers involved in the case believe CPS has stretched its legal authority here.

Of course this isn’t your typical subdivision. The families are all connected through a single religious sect. So does living in a tight-knit community in which kids are abused put all children at risk? The courts will have to untangle that one.

A five-hour hearing on the border wall conducted by members of Congress at UT Brownsville today illustrated why we have a logjam in Congress over any kind of meaningful immigration reform.

The 7-person congressional panel featured a number of chairmen including U.S. Rep. Raul Grijalva a Democrat from Arizona, and U.S. Rep. Madeleine Bordallo, a Democrat from Guam. The majority of the members were Democrats with the exception of soon to be ex-U.S. Rep. Duncan Hunter a Republican from California and the architect of the Secure Fence Act of 2006 legislation and soon to be ex-U.S. Rep. Tom Tancredo, a Republican from Colorado. Both Tancredo and Hunter are former presidential candidates who ran on an anti-immigration platform but failed to make a dent against Sen. John McCain, who holds a more moderate position on the subject.

Democrats on the panel seemed to agree the United States needed comprehensive immigration reform and that segments of a border wall would not solve U.S. immigration woes. Tancredo and Hunter repeatedly tried to argue that a border wall would significantly help stop illegal immigration. Hunter, especially seemed fixated on the double layered border fence in San Diego. He offered statistics that border arrests are down in San Diego but didn’t cite sources for them. Hunter’s district borders Tijuana in Baja California. Hunter painted a picture of apocalyptic lawlessness: hundreds of rapes, murders and “massive tons of cocaine being injected into the veins of American children” before the wall had been built.

But, people in Brownsville didn’t want to hear about San Diego. They wanted the congressional leaders to understand the uniqueness of the border culture in Texas.

The lecture hall was packed with border landowners, university students and business leaders from the border region. No supporters of the wall appeared to be present. “I would say that our community is united in opposition against the wall,” said Brownsville County Commissioner John Wood as he scanned the audience.

That opposition was evident in numerous testimonies from business people, landowners and academics including Dr. Juliet Garcia, President of the University of Texas at Brownsville. Dr. Garcia’s testimony illustrated the heavy handedness of Homeland Security and the short sightedness in trying to construct a wall through her campus by December 31, 2008. Garcia said that DHS’ plan was to leave an opening in the 18-foot fence that would funnel illegal activity to that point. That point however, would be right next to the library and campus classrooms. It would also be the same entrance that students would use to enter the university’s golf course.

The audience laughed in disbelief at DHS’ plan. “I could not sign the (DHS) waiver because it is my responsibility to protect the safety of our students,” she said.

Some of the more interesting testimony came from Ned Norris, chair of the Tohono O’odham tribe in Arizona. Norris said that much damage had already been done to ancestral burial grounds and the tribe’s sovereignty by Homeland Security’s heavy handed tactics. So far, DHS has already constructed vehicle barriers throughout the Tohono O’odham ancestral lands which range from the Arizona border near Tucson south into Mexico. Norris said subcontractors hired by Boeing, who is in charge of building the wall had ignored federal archaeological laws and destroyed burial grounds. “Imagine heavy machinery driving over your family graveyard,” he said. Norris said Homeland Security had never consulted with them on border security issues. “Their attitude is that we are federal land and they are the federal government and they can do whatever the hell they want.” Norris said that Secretary Michael Chertoff had avoided several invitations made by the tribe to visit. He also dodged them during several visits to Washington D.C.

‘We are tired of being tour guides for Congress,” said a frustrated Norris. “Probably the only visit we’d like to have right now is Chertoff, but he won’t come. He goes to the border to the East and the West of us but he never comes to out land.”

Every witness who testified before the panel said that Homeland Security had never consulted with them before suing them for access to their land to build the wall.These witnesses included local leaders, landowners, the Catholic Diocese, the UT Brownsville campus, the Texas Produce Association which represents hundreds of farmers and the Tohono O’odham tribe. Hunter and Tancredo did not seem to see a problem in Homeland Security’s tactics, however.

At the and of the day, Hunter said it was a successful hearing. “Well you thought you didn’t get your day in court, now you’ve gotten to talk about your issues,” he said.

But those testifying weren’t there just to go through the motions. They want action and they feel their day in court has yet to come.

For almost a year, Dr. Eloisa Tamez has been fighting Homeland Security’s construction of an 18-foot wall in her back yard. The Observer wrote about her struggle in our Holes in the Wall story and in previous blogs. For several weeks it seemed she had a compelling case that might at least force Homeland Security to negotiate a fair market value for her property. Last week, that came to an end when Judge Andrew Hanen, a U.S. District Court judge in Brownsville, ruled in favor of Homeland Security.

In a 13-page court document, Hanen wrote that each side found the other party’s offer unreasonable. “This is certainly a case where the parties are “unable to agree on a reasonable price.” See 8 U.S.C. 1103 (b)(3). At such an impasse, 1103 does not require this Court to order further futile negotiations, but rather permits the Government to continue with its condemnation action.”

Dr. Tamez said that she would continue to fight the construction of a border wall on her property in El Calaboz, outside of Brownsville. She is currently researching her next move with her lawyer Peter Schey. “This is not going to stop here,” she vowed after the Judge’s decision.

Tamez is one of the last of the Spanish land grant heirs along the Texas-Mexico border. Homeland Security would like the build the wall on land that was granted to her ancestors by the King of Spain in the 18th century. The wall would divide and destroy the three acres she inherited and planned to pass on to her children and grandchildren.

“Where are the constitutional rights that protect me?,” she said. “I don’t feel the government has followed our Constitution.”

Two congressional subcommittees of the House Natural Resource Committee will be holding a joint hearing on the border wall in Brownsville on April 28th. Tamez says she plans to attend. It will be held at the University of Texas at Brownsville. “Our congressional leaders have been absent and the landowners feel like we have been fighting this battle against the government on our own,” says Tamez.

The hearing will center around Arizona Rep. Raul Grijalva’s Borderlands Conservation and Security Act, which would force Homeland Security to negotiate with landowners and would require the agency to follow federal laws when constructing the wall. The bill has been languishing in a subcommittee since last summer, however.

Since Homeland Security Secretary Michael Chertoff waived 36 federal land and environmental laws two weeks ago, the bill has gained more co-sponsors but it still lacks Republican support.

The bill also repeals the section of the REAL ID act which gave Chertoff the authority to waive environmental, labor, and other laws to construct the border wall.

Grijalva told the Rio Grande Guardian in a story Monday that “The Real ID Act is an overreach, constitutionally. What we are asking for is to introduce another constitutional right – due process,” he said. “We are not saying you cannot have national security on the border. Let’s have a process whereby the public has some input. You must have consultation, you must have NEPA and the environmental assessments and you must look for alternatives.”

Tamez says that Congressional leaders outside of Texas have done more for border residents in her community than local congressional leaders. “We want our congressional leaders to know what this border wall will cost for us,” she says. “Congressman Bennie Thompson and Raul Grijalva have been more visible on this than our own Representatives.”

After a lot of talk and not much action congressional members are finally standing up to Homeland Security Secretary Michael Chertoff’s imperial powers. Yesterday, U.S. Rep. Bennie Thompson, chair of Homeland Security, and 13 other congressional members announced they will file an Amicus Curiae brief at the end of the month to oppose Chertoff’s effort to brush aside laws in a rush to build a border wall. The Amicus urges the Supreme Court to hear a petition filed by Defenders of Wildlife and Sierra Club challenging Chertoff’s right to waive at least 39 federal environmental, historical and land protection laws.

The agency’s waiver will apply to 470 miles ranging from California, Arizona, New Mexico and Texas. A separate waiver has been signed for the 22-mile border fence-levee project to be built in Hidalgo County. In an Observer blog last week, Chertoff explained his reasons for filing the waiver.

Chertoff has the authority to do this thanks to Congress and the Real ID Act of 2005. He has already waived environmental rules in California and Arizona to expedite the construction of the border wall. His goal is to have 370 miles of “pedestrian fence” built along the Southern border by December 31, 2008.

Oliver Bernstein, a spokesperson for Sierra Club, says at this point Congress and the Supreme Court are the last avenues to stop the border wall from being built. “It is great to see Congressional members join in an effort to declare the Real ID Act unconstitutional,” he says.

The New York Times ran a good analysis today of the legal aspects of the case. The Supreme Court will probably not make a decision on whether to hear the petition until some time this summer.

Bernstein was also pleased to hear that Congressman Raul Grijalva and the House Natural Resource Committee will hold a hearing on the border wall on April 28th in South Texas. Girjalva, a Democrat from the border region in Arizona, is the author of HR 2593, called the Borderlands Conservation and Security Act. Grijalva’s bill gives Homeland Security the discretion to decide whether a fence is necessary. It also allows for community input and requires that federal laws be followed when building a fence.

The bill has languished in a Subcommittee since last summer, however — usually the kiss of death in legislative terms. And while it has 29 co-authors, not one of those co-authors is a Republican. The Democrats may have the majority in the House and Senate, but the majority is so razor thin that they can’t get anything passed without some Republican support.

Noah Kahn, a wildlife refuge program manager for Defenders of Wildlife, has been following the border fence debate in Washington D.C. since 2006. He says many Republicans have been approached to sign on to the bill, but no one wants to take the lead.

“The first question they ask is “what other Republicans have signed on to the bill’”? he says.

Kahn says he believes that many Republicans support building a wall because their constituents believe it will stop terrorism and illegal immigration. “The problem is actually a lot more complex. And a wall won’t stop illegal immigration or terrorism and that’s generally been proven already,” he says.

For one thing the wall is being built in patchwork pieces along the border. It is also questionable why the wall is being built through working class homes and not through golf courses and resorts as we documented in the Observer feature “Holes in the Wall.” In addition, the government has estimated it could cost as much as $49 billion to build, maintain and repair the fencing.

But as long as the wall is equated with stopping terrorism and illegal immigration, it’s very difficult for politicians to sell their constituents on alternatives, says Kahn. “DHS is insisting on fast-tracking this expensive, ineffective wall, which costs taxpayers well over $1 million a mile but only slows border crossings down by two to three minutes,” he says.

So why all the hurry on the part of Chertoff who will be on his way out in less than nine months? Kahn believes that President Bush is working behind the scenes to get the fence built before December 31, 2008. “I haven’t heard Bush speak about this fence publicly in more than a year. But I have credible sources saying his office is at work behind the scenes to get these walls built regardless of the costs to wildlife, local people, and the American taxpayer,” says Kahn.

How appropriate that the Department of Homeland Security would announce its plan to file a massive environmental waiver to cover the southern border on April Fool’s Day. Homeland Security Secretary Michael Chertoff wants to get his border wall built before Christmas. A month later Bush will leave office and Chertoff will be looking for work elsewhere. We won’t be surprised if he eventually lands with a firm that’s making big bucks off this boondoggle.

In a press release today, Chertoff is quoted as saying, “Criminal activity at the border does not stop for endless debate or protracted litigation.”

The agency’s waiver will apply to 470 miles ranging from California, Arizona, New Mexico and Texas. A separate waiver has been signed for the 22-mile border fence-levee project to be built in Hidalgo County. This project was agreed to by Chertoff as a concession to Hidalgo County Judge JD Salinas and landowners in Granjeno, whose homes would have been destroyed by the wall.

As I wrote in an earlier blog last Friday, both Defenders of Wildlife and Sierra Club expected as much from Chertoff and company. Noah Kahn, a refuge program manager for Defenders of Wildlife, in Washington D.C.. said he had heard several credible rumors swirling around D.C. in the last few days about a waiver in the pipeline.

Chertoff has the authority to do this thanks to Congress and the Real ID Act of 2005. He has already waived environmental rules in California and Arizona to expedite the construction of the border wall. His goal is to have 370 miles of fence and 300 miles of vehicle barriers built along the Southern border by December 31, 2008. In a recent Observer blog, we wrote about lawsuits filed by Sierra Club and Defenders of Wildlife challenging Chertoff’s imperial powers.

Oliver Bernstein, a spokesperson for the Sierra Club, said that they hope the U.S. Supreme Court will rule by this summer on whether the court will hear their case. This new waiver will become part of that challenge, said Bernstein.

Another important question is how Chertoff’s waiver will affect private landowners like Eloisa Tamez in Brownsville. Tamez was profiled in our “Holes in the Wall” story about the border wall boondoggle. She has won several important concessions in her court case against Homeland Security. On March 6, U.S. District Judge Andrew Hanen ruled that DHS must enter into negotiations with Tamez and arrive at a fair price for her land before it condemns her property to build a wall.

Peter Schey, Tamez’s lawyer, said he doesn’t think the waiver will affect the Tamez litigation since suit is not dependent on environmental laws.

“We rely on two laws — one embedded in the 1996 IRIRA law that requires DHS to negotiate for a reasonable fixed price for the land and another law passed in the 2008 appropriations bill that requires DHS to consult with a property owner before condemning their property.”

Schey said the waiver will prevent any property owners from citing environmental laws when trying to protect their property from being condemned. “It erases it from the equation,” he says.

(Update below)

We don’t usually write about rumors but this one has too many implications for what remains of our civil liberties to ignore. We have received a few emails and calls today about the possibility that Homeland Security Secretary Michael Chertoff may post notice in the Federal Register Friday that he is going to waive all environmental rules to build the border wall in South Texas. The waiver may blanket Texas or the entire Southern border from California to Texas in a giant mega-waiver.

Chertoff has that ability thanks to Congress and the Real ID Act of 2005. He has already waived environmental rules in California and Arizona to put the border wall on the fast track. His goal 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 Chertoff’s imperial powers.

We called Homeland Security in Washington D.C. in an attempt to get confirmation on the waiver. A spokesperson for the agency Amy Kudwa would not confirm a waiver in the pipeline, and said Homeland Security had no announcements today about a waiver.

Next we called Noah Kahn, a refuge program manager for Defenders of Wildlife, in Washington D.C.. Kahn said he had heard several credible rumors swirling around D.C. in the last few days about a waiver in the pipeline.

“It would not surprise me if there is a Real ID waiver coming soon because Chertoff has a history of waiving laws and it’s no secret that the border wall is not appropriate for a wildlife refuge,” Kahn says. “We have heard the waiver could be coming Friday which is a day typical for these kinds of press announcements since it is the end of the week and the press won’t be paying as much attention.”

Kahn says he thinks a waiver in Texas is more likely than a sea-to-shining-sea waiver from California to Texas. “That would be an even more unnecessary abuse of power,” he said.

The current mood in Congress is lukewarm when it comes to stopping the construction of the border wall. “It’s not politically palatable to oppose the border wall in an election year,” he says. “Those in Congress who are against the wall are remaining silent about it, because as long as it is linked with illegal immigration they don’t want to touch it.”

While the Real ID act allows Chertoff to waive federal laws, it will be interesting to see how the waiver impacts constitutional law. Dr. Eloisa Tamez and several other Texas landowners are currently fighting to keep their land from being condemned by Homeland Security. They assert that Chertoff is violating their right to due process under the fifth amendment of the Constitution.

Update

No sign of a waiver being filed today (Friday) in the Federal Register. A good source in Washington D.C. shared some important information that language was passed in the appropriations bill restricting any funding for the fence until 15 days after notice is published in the Federal Register.  We’ll keep you posted if we hear anything from Washington. Also, thanks to Jay J. Johnson-Castro, Sr, of Border Ambassadors for sounding the alarm about the possibility of an impending waiver in the pipeline.

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.