Court refuses to hear border fence case

The Hill
June 15, 2009
by Reid Wilson

The Supreme Court on Monday declined to hear a case that questioned whether the federal government could supersede state and local laws blocking a fence along the U.S.-Mexican border.

The case tested the constitutionality of a provision in a broad 2005 law that created national standards for state driver’s license requirements. The provision in question would give the Department of Homeland Security the authority to waive local legal requirements that stand in the way of the 700-mile border fence.

Attorneys for the petitioners, led by El Paso County, Texas, argued the REAL ID Act constituted a delegation of legislative powers to the executive branch that amounted to an abdication of responsibilities.

The act allows DHS to circumvent the Endangered Species Act and the National Environmental Policy Act in constructing the fence. But it also gives DHS 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[.]"

Congress established a limited and streamlined judicial review, which petitioners cited in their claims of unconstitutionality.

Under President Bush, Homeland Security Secretary Michael Chertoff approved two waivers that disburden fence planners of having to comply with "all federal, state or other laws, regulations and legal requirements" of construction.

Solicitor General Elena Kagan filed a brief for the Justice Department opposing the petition, arguing the county and local governments lacked the standing to bring the case.

The justices themselves took a considerable amount of time in mulling the case. The subject was brought up in conference eight times, most recently last Thursday, before justices voted not to accept the case. It is the second time in a year justices had declined to hear challenges to the border fence.

The court announced it would take up four cases, including one examining the constitutional limits on states when it comes to restoring storm-eroded beaches, in a case originating in Florida.

The court declined to hear another Florida case, which argued that five alleged Cuban spies could not get a fair trial in Miami because of anti-Cuban sentiment in the area.

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