Power to Build Border Fence Is Above U.S. Law

New York Times
April 8, 2008

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, Mr. 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 to second-guess the secretary’s determinations. So long as Mr. Chertoff is willing to say it is necessary to void a given law, his word is final.

The delegation of power to Mr. 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 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 Mr. Chertoff may test the limits of how much of its own authority Congress can cede to another branch of the government.

Mr. 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.”

Mr. Chertoff has issued three similar waivers, and a challenge to the constitutionality of one of them has just reached the United States 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 Mr. 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 Mr. 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.”

(Happenchance? You don’t see that word every day, and certainly not in a court filing.)

The groups said Congress cannot hand over unbridled power to the executive branch even as it cuts the courts out of the picture. They relied mostly on a 1998 Supreme Court decision striking down the Line Item Veto Act, which had allowed the president to cancel parts of laws.

In December, Judge Huvelle rejected the challenge and allowed construction to proceed. She said she had no jurisdiction to decide whether Mr. Chertoff was correct in saying the waivers were necessary, and she ruled that the delegation of power to him was constitutional.

“The court concludes that it lacks the power to invalidate the waiver provision merely because of the unlimited number of statutes that could potentially be encompassed,” Judge Huvelle wrote.
A petition asking the Supreme Court to hear the case was filed three months later.

Did you notice the missing step? In addition to forbidding judges from second-guessing Mr. Chertoff’s decisions, Congress forbade federal appeals courts from becoming involved at all. After losing before Judge Huvelle, the groups’ only recourse is to hope the Supreme Court decides to hear their appeal.

In their petition, the environmental groups said the Supreme Court had never upheld a broad delegation of power like that given to Mr. Chertoff without the possibility of judicial review of executive branch determinations. Nor, they said, has any appeals court.

It is the combination of those two factors — the broad granting of power to the executive branch and cutting the judicial branch out of the process — that makes the 2005 law so pernicious, the groups say.

The government’s response is due next week. In a brief filed in the district court last year, Justice Department lawyers told Judge Huvelle that the urgency of border security must trump other interests. They added that Congress may delegate particularly broad powers in the areas of national security, foreign affairs and immigration because the Constitution gives the executive branch great authority in those areas.

The line-item veto decision does not apply, the government lawyers said, because Mr. Chertoff is not repealing laws for all purposes, just suspending them for his fences.

It is true, of course, that Congress gave up its powers here voluntarily. But Justice Anthony M. Kennedy had a response to that point in his concurrence in the line-item-veto case.

“It is no answer, of course, to say that Congress surrendered its authority by its own hand,” he wrote. “Abdication of responsibility is not part of the constitutional design.”

Justice Kennedy made a broader point, too, one perhaps more apt today than it was 10 years ago.

“Separation of powers was designed to implement a fundamental insight,” he wrote. “Concentration of power in the hands of a single branch is a threat to liberty.”

http://www.nytimes.com/2008/04/08/us/08bar.html