A child takes a swing at breaking down a wall-shaped piata at an anti border wall rally at the Las Lomitas Mission. Residents are adamantly against a fence. This phenomenal power, granted in the emotional fog generated by the specter of terrorism, is contained in the Real ID Act, a rider to an Iraq war funding bill passed in 2005. The Congressional Research Service has said the law appears to be unprecedented: It gives a political appointeeChertoff”sole discretion” to ignore requirements of other federal laws. This section of Real ID passed quietly, as if Congress were unaware of its consequences, or cowering. When a coalition of environmental groups attempted to stop the fence in a delicate estuary near San Diego, Chertoff waived not only the National Environmental Policy Act, sometimes called the nation’s environmental Magna Carta, but the National Historic Preservation Act, the Clean Water Act, National Wildlife Refuge Act, the Federal Water Pollution Act, and other statutes. Near San Diego, a wall made of surplus World War II metal landing mats now reaches through the wetland into the Pacific like a giant cleaver. Floor debate around Real ID implied the secretary’s special power would be used only in San Diego. But the letter of the law does not restrict its application to San Diego, and there is no time limit on it. After San Diego, Chertoff waived laws near Yuma, too. Lower Rio Grande Valley leaders argue that the river, a natural barrier, makes a fence less necessary. They may have another argument as well: Under treaties between Mexico and the United States, the river is an international boundary under the aegis of the International Boundary and Water Commission, which holds the right of way on nearby levees where the fence is likely to go. Without the commission’s permission, neither side may erect an obstruction that changes the flow or floodway of the river, or causes erosion, because that in effect is changing a national boundary. Mexico, on record against the wall, is an equal partner in the commission with the United States. Noted Houston environmental lawyer and educator Jim Blackburn recently told a McAllen meeting called by the local Hispanic Chamber of Commerce that while Chertoff can waive national laws, he may not waive treaty obligations. 10 THE TEXAS OBSERVER SEPTEMBER 7, 2007
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