Thursday, December 11, 2008

Border fence case sent to high court

El Paso Times
December 11, 2008

EL PASO -- El Paso County filed an appeal Wednesday before the U.S. Supreme Court asking whether the Department of Homeland Security and its secretary, Michael Chertoff, have the legal authority to disregard federal, state and local laws to build the border fence.

Congress in 2005 passed the Real ID Act granting Chertoff and the Department of Homeland Security statutory authority to waive law to construct the border fence.

El Paso County Attorney José Rodríguez said Chertoff, through the Real ID Act, violated the Constitution and the 10th Amendment by broadly interpreting vague powers granted to him by Congress.

The 10th Amendment grants states the authority to create law if the Constitution hasn't already expressly delegates that authority to the federal government.

"We do think this does present for the court an opportunity to clarify for the national level what the authority is for declaring these kinds of waivers for the executive branch, and what circumstances you pre-empt state and local laws," Rodríguez said. "It was just kind of an unbridled authority that was given to the secretary."

Typically, when waiver authority has been granted to the executive branch by Congress, executive agencies were given specific parameters for which laws they may disregard, Rodríguez said.

Chertoff's authority to waive existing law has enabled him to disregard at least 37 federal statutes, such as the Clean Air Act and the National Environmental Protection Act, as well as state and local laws, to accelerate the construction of the fence.

The county, the city, the Tigua tribe, the local irrigation district and environmental groups in September sued Chertoff and the Department of Homeland Security, alleging that Chertoff's use of waivers to construct the fence was unconstitutional.

U.S. District Court Judge Frank Montalvo dismissed the case, ruling that Congress constitutionally delegated its authority in waiver legislation.

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