A Fool’s Folly: Chertoff’s Mega Waiver
April 1st, 2008 at 4:16 pm
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.
April 1st, 2008 at 9:34 pm
[…] is currently held up in negotiations, court cases, local protests, and wavering public support, but Homeland Security Secretary Michael Chertoff ordered these waivers stating, “`Criminal activity at the border does not stop for endless debate […]
April 4th, 2008 at 7:57 am
They pulled the trigger yesterday, April 3rd, publishing the waiver in the Federal Register. It is now official. Chertoff must not have liked the results of the EIS.
April 5th, 2008 at 11:03 am
This represents an unprecedented abuse of authority on Secretary Chertoff’s part, and clearly demonstrates the need for an immediate repeal of section 102 of the Real ID Act. Obeying the law is not voluntary, it is mandatory, and Secretary Chertoff cannot claim that he is sweeping aside a host of laws on the border in defense of immigration laws. In a nation of laws all laws must be respected, not just those that are convenient.
Equal protection under the law is meant to be a fundamental right shared by every American, but the Real ID Act makes the legal rights of citizens who live near the border conditional on Secretary Chertoff’s whims. Section 102 of the Real ID Act of 2005 states, “Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section.” No one else is granted this extreme power under any circumstance. The president cannot waive our nation’s laws even in times of national crisis, and Secretary Chertoff cannot waive the laws that protect citizens who live away from the border. Only border residents may have their legal protections waived.
Chertoff said, “Criminal activity at the border does not stop for endless debate or protracted litigation.” The waivers are essentially an admission that the border wall will itself violate up to 36 federal laws, making construction of the wall a criminal act. If Chertoff is genuinely concerned with criminal activity he should ensure that the agency that he oversees complies with the law.
The only reason for Secretary Chertoff to waive these laws is because he knows that the border wall will violate them. In setting these 36 federal laws aside Secretary Chertoff sets himself above the law. If congress allows unchecked power to remain in the hands of an unelected administration appointee they are complicit in fundamentally undermining the rule of law. Leaving the Real ID Act on the books and allowing Chertoff’s waivers to stand sets a precedent that should outrage the American people. If our nation’s laws can be set aside to build a border wall today, they may be similarly set aside for whatever crisis politicians discover in the next election cycle.
April 8th, 2008 at 4:55 pm
[…] 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 […]
April 14th, 2008 at 7:04 pm
[…] 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 […]
June 23rd, 2008 at 4:58 pm
[…] April 1, Chertoff waived 37 federal laws ranging from the Antiquities Act to the Native American Grave Repatriation […]