Tuesday, April 1, 2008

Chertoff’s Border Wall Waiver is an Assault on the Rule of Law

The No Border Wall Coalition is deeply disturbed by the announcement that Department of Homeland Security Secretary Michael Chertoff has decided to “waive in their entirety” 36 federal laws to build walls along the entire United States’ southern border. 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.

Secretary Chertoff claims that the Secure Fence Act mandates walls along the border, and he therefore has no choice but to build border walls no matter the cost. The walls that are scheduled for construction in 2008 will destroy homes, businesses, and farms, will slice through communities, parks, and wildlife refuges, and will cost tens of billions of dollars. Border walls will not stop anyone from entering the United States, and in July 2007 the Congressional Research Service concluded that the California border wall “did not have a discernible impact on the influx of unauthorized aliens coming across the border in San Diego.” Recognizing this fact language was inserted into the 2007 Omnibus Spending bill that allowed Secretary Chertoff to decide whether or not walls would be built in a given area based on tactical considerations, and required that he consult with local stakeholders. Despite the fact that his hands are no longer tied, Secretary Chertoff prefers to act as though the Secure Fence Act is still the law of the land, and it is apparently the only law that he continues to respect.

In announcing the Real ID waivers Secretary 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.

The No Border Wall coalition calls on congress to repeal section 102 of the Real ID Act and restore the rule of law. We also urge the Supreme Court to take up the constitutional challenge brought by the Defenders of Wildlife and Sierra Club to Secretary Chertoff’s earlier waiver of 19 federal laws to force the border wall through the San Pedro Riparian National Conservation Area in Arizona. Allowing one man to overrule laws passed by Congress and signed by the President for the express intent of circumventing judicial oversight is fundamentally un-American.

9 comments:

Kathy said...

Thank you, thank you, for writing the article. Today I've been searching the Internet for some solace and some camaraderie, to no avail. When I heard the horrible, unbelievable truth, I felt like I was living in a burgeoning police state, lonely and unheard, like the Whos down in Whoville. Who listens to and cares about us down in the beautiful Rio Grande Valley? We exist, even when candidates are no longer in a dead heat to win our state.

Kathy said...

To the Writer of This Article:

Thank you, thank you, thank you. This new development leaves me absolutely heartsick, and I have been searching the web for some solace, some comment. I write congressmen and receive form letters in return. I feel voiceless. We in the Valley are like the Whos down in Whoville. Who listens to and cares about our beautiful, sacred part of the world?

Kathy Raines
Brownsville, TX

NO BORDER WALL said...

Kathy,

Write letters and make phone calls to judge Cascos of Cameron County and judge Salinas of Hidalgo County, and encourage them to stand up to Chertoff. As judges they should be fighting for the legal rights of border residents in Brownsville and McAllen. A few short months ago both did. Now judge Salinas says that the wall is not a wall, and the waiver is a positive development. Salinas should be ashamed, and south Texas residents should call him to task.

Anonymous said...

If all laws are to be enforced, let's start with enforcing the one against illegal entry into the U.S. without proper documentation. Those that have broken this law are the ones to blame for the fence having to be built in the first place. Every nation has a right to secure its borders in any way possible to prevent illegal entry.

NO BORDER WALL said...

Anonymous - ALL laws must be enforced. Waiving 36 laws to create the illusion that you are enforcing 1 is not only a bad trade off, giving the power to decide which laws get enforced and which get waived is fundamentally opposed to the rule of law. In a system of checks and balances you don't get to cherry pick which laws you like and which ones you don't.

As James Madison wrote in the Federalist Papers, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands… may justly be pronounced the very definition of tyranny.” Allowing one man to overrule laws passed by Congress and signed by the President for the express intent of circumventing judicial oversight is un-American.

an average patriot said...

The wall is a joke and another corruptive facade of concern. Bush under the guise of helping the country which is a major lie can do what he wants. The laws are for us the lies are for him. I hope you saw my comment on my post on this but thank you!

Born Again Bird Watcher said...

Thanks for all you're doing and keeping up the fight. I'm trying to do my part and get the birders more involved: http://www.bornagainbirdwatcher.com/2008/04/politics-of-fear-and-destruction-of.html.

Matthew Webster said...

Thank you for getting the word out about this unconscionable act. We must take action, now not only because the wall is a devastating physical possibility but also because the REAL ID ACT is a subtle yet far worse threat to American justice than any act of terrorism. Keep up the great work, Scott. You are not alone...

berto said...

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