Securing the nation’s borders is so important, Congress says, that Michael Chertoff, the homeland security secretary, must have the power to ignore any laws that stand in the way of building a border fence. Any laws at all.
Last week, Chertoff issued waivers suspending more than 30 laws he said could interfere with “the expeditious construction of barriers” in Arizona, California, New Mexico and Texas. The list included laws protecting the environment, endangered species, migratory birds, the bald eagle, antiquities, farms, deserts, forests, Native American graves and religious freedom.
The secretary of homeland security was granted the power in 2005 to void any federal law that might interfere with fence building on the border. For good measure, Congress forbade the courts from second-guessing the secretary’s determinations. So long as Chertoff is willing to say it is necessary to void a given law, his word is final.
The delegation of power to Chertoff is unprecedented, according to a report from the Congressional Research Service. It is also, if papers filed in the Supreme Court last month are correct, unconstitutional.
People can disagree about the urgency of border security and about whether it is more or less important than, say, the environment. Congress is entrusted with making those judgments, and here it has spoken clearly. In the process, it has also granted the executive branch more of just the sort of unilateral power the Bush administration has so often claimed for itself.
No one doubts that Congress may repeal old laws through new legislation. But there is a difference between passing a law that overrides a previous one and tinkering with the structure of the Constitution itself. The extraordinary powers granted to Chertoff may test the limits of how much of its own authority Congress can cede to another branch of the government.
Chertoff explained the reasoning behind the law in a news release last week. “Criminal activity at the border,” he said, “does not stop for endless debate or protracted litigation.”
Chertoff has issued three other similar waivers, and a challenge to the constitutionality of one of them has just reached the U.S. Supreme Court. If the court decides to hear the case, its decision will almost certainly apply to last week’s waivers as well.
The case was brought by two environmental groups, Defenders of Wildlife and the Sierra Club. They sued Chertoff last year over his decision to suspend 19 laws that might have interfered with the construction of a border fence in the San Pedro Riparian National Conservation Area in Arizona.
Congress, the groups said, had given Chertoff too much power.
“It is only happenchance that the secretary’s waiver in this case involved laws protecting the environment and historic resources,” the groups told Judge Ellen Segal Huvelle of federal district court in Washington. “He could equally have waived the requirements of the Fair Labor Relations Act to halt a strike, or the provisions of the Occupational Safety and Health Act in order to force workers to endure unsafe working conditions.”