Associated Press
December 11, 2008
EL PASO, Texas (AP) — A Texas county filed an appeal with the U.S. Supreme Court this week in the latest bid to stop construction of hundreds of miles of fencing along the U.S.-Mexico border.
In asking the court to review a lawsuit previously dismissed by a federal court judge, lawyers for El Paso County contend that U.S. Homeland Security Secretary Michael Chertoff overstepped his legal authority when he waived 37 federal laws that could have slowed or blocked construction of fencing along the border.
Attorneys for the county also allege that Chertoff violated the 10th Amendment, which grants states the right to enforce laws neither prohibited by nor delegated to the federal government.
Congress authorized the fence to help secure the border and slow illegal immigration, and then gave Chertoff the power to waive the federal laws in 2005.
Previous legal challenges to the waiver authority, which includes a lawsuit by several environmental groups in San Diego, failed to gain traction in courts. The Supreme Court also declined to hear border fence challenges.
El Paso County Attorney Jose Rodriguez said Wednesday he believed the 10th Amendment protects the county and other jurisdictions from Chertoff's action.
"From our point of view, we think that we have made some compelling arguments about why the Supreme Court should take up our case," Rodriguez said. "This case is a much more significant case than (the San Diego) one. That involved fewer laws. It wasn't anywhere near the 37 laws. The secretary also waived any state and local laws that are derived from or related to those statutes."
Homeland Security officials said they expect to prevail.
"Every time a group has challenged our use of the waiver authority in court, the court has ruled that the waiver was lawful and constitutional. We expect the same result here," DHS spokeswoman Amy Kudwa said in an e-mail. "Groups like this one claim to be interested in border security — so long as the measures taken to protect the border do not affect them."
Cory Briggs, a San Diego lawyer who represented the environmental groups, said the Supreme Court's rejection of border fence claims suggests the court wasn't interested in the border.
Denise Gilman, a clinical law professor at the University of Texas in Austin, said the 10th Amendment was "one of the most under litigated portions" of the Constitution. She said El Paso's suit, based on the court's history, stood a "50/50 probability, and it may even be lower than that."
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