Tuesday, June 16, 2009

Supreme Court decision a 'tremendous blow' for border residents

Rio Grande Guardian
June 16, 2009

WESLACO, June 16 - The No Border Wall coalition has expressed disappointment with the announcement that the U.S. Supreme Court will not hear arguments in the border wall lawsuit brought by El Paso County and others.

“The Supreme Court’s refusal to hear arguments that the waiving of all state, local, and federal laws to build the border wall is unconstitutional is a tremendous blow for border residents and the principle of the rule of law,” said Scott Nicol, a spokesman for the No Border Wall group.

In April 2008, then Homeland Security Secretary Michael Chertoff waived 36 federal laws in order to speed up construction of the border wall project. The Department of Homeland Security (DHS) was instructed to build thousands of miles of border fencing under the Secure Fence Act of 2006.

A lawsuit challenging Chertoff’s decision to waive the 36 federal laws was brought against DHS in June, 2008 by El Paso County, the City of El Paso, the El Paso County Water Improvement District No. 1, and the Ysleta del Sur Pueblo.

Frontera Audubon Society, the Friends of the Wildlife Corridor, and the Friends of Laguna Atascosa National Wildlife Refuge later joined the lawsuit.

El Paso County Attorney José Rodríguez contended that congressional waiver of authority, provided under Section 102 of the Real ID Act, without the opportunity for judicial review, was an unconstitutional delegation of legislative power. Rodríguez also claimed it was insufficient to permit the Homeland Security Secretary to declare pre-empted every state and local law related to the waived federal statues.

“We are disappointed but not surprised by this outcome. While we feel that we had a strong case, competition for space on the Supreme Court’s crowded docket is high,” Rodríguez said.

“This decision now ends our pursuit of this case. El Paso County would very much like to thank Mayer Brown LLP of Washington, D.C., for their defense and support in this case. Mayer Brown litigated this case without any cost to the county.”

On September 11th, 2008 a Federal District Judge of the Western District of Texas granted DHS’s motion to dismiss the lawsuit based on the merits of the case.

In his ruling, U.S. District Judge Frank Montalvo held that the waivers used by Chertoff to expedite the construction of the border fence were constitutional because “…Congress constitutionally delegated its authority in the Waiver Legislation.”

Montalvo further ruled that the waiver legislation did not violate the 10th Amendment to the U.S. Constitution because the waivers were issued with the intent to “preempt state and local laws, which would interfere with Congress’s objective to expeditiously construct the border fence.”
Rodríguez said although the appeal was rejected, he expressed optimism that the Obama Administration has demonstrated a willingness to consult with local communities on the fence and other border security policies.

No Border Wall is a grassroots coalition of groups and individuals united in the belief that a wall along the U.S.-Mexico border will do irreparable harm to the borderlands and the nation as a whole. The group is opposed to the construction of a border wall because it believes it will have “devastating consequences” on border economies, the environment, human rights, and U.S.-Mexico relations.

“We had hoped that the court would honor its obligation to examine the constitutionality of section 102 of the Real ID Act, which is an unprecedented power grab by the Executive branch, and which creates unequal legal protections for U.S. citizens that are solely dependant upon what part of the country one lives in,” the No Border Wall group’s Nicol said. “In this instance the Supreme Court shirked its duty, leaving the border without the benefit of the rule of law that is enjoyed by the rest of our nation.”

Section 102 of the Real ID Act allows for the suspension of all laws to build the border wall, stating, “Notwithstanding any other provision of law, the Secretary of Homeland Security shall have 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 under this section.”

Nicol pointed out that no other U.S. citizen is granted this extreme power under any circumstance. “Even the president does not have this power to waive our nation’s laws, no matter what crisis may arise,” Nicol said.

Nicol said Chertoff knew that in building border walls he would be violating numerous laws. “Obeying the law is not voluntary, it is mandatory. In a nation of laws all laws must be respected, not just those that are convenient. Those laws were enacted to prevent the kind of damage that we see everywhere border walls have been built,” Nicol said.

Nicol said environmental groups in the Rio Grande Valley fear for the future of the Lower Rio Grande Valley National Wildlife Refuge. He pointed out that as it consists of individual tracts of native habitat linked by the Rio Grande, the Refuge creates a wildlife corridor, providing federally endangered species such as the ocelot and jaguarundi sufficient territory to find food, water, and mates.

Migratory birds also rely on it to rest and refuel on their annual journeys, as well as for nesting, Nicol said.

“The border walls that have been built, and those that are still under construction, slice through many refuge tracts and cut off others from the river. The wall is fragmenting habitat, blocking migratory pathways, denying animals’ access to fresh water, and isolating breeding populations of endangered ocelot and jagurandi,” Nicol claimed.

“Because the Endangered Species Act, the Migratory Bird Treaty Act, the National Wildlife Refuge System Administration Act, and the National Environmental Policy Act were among the 36 federal laws that the former Secretary swept aside, none of the usual legal protections for these supposedly protected lands remain.”

Nicol said equal protection under the law is meant to be a fundamental right shared by every American. However, he said the effect of the Real ID Act is to make the legal rights of citizens who live near the border “conditional on the whims of an unelected Administration appointee.” Under the Act, the Homeland Security secretary cannot waive laws that protect citizens who live away from the border, only border residents, Nicol argued.

“When the Supreme Court decided not to hear these arguments without uttering so much as a word as to why, they shirked their duty as the final arbiters of the United States constitution and the principle of the rule of law that it enshrines,” Nicol said.

“This precedent bodes ill for the rest of the nation, as any manufactured crisis may be used to enact a similar waiver.”

Nicol speculated that a “broken” northern border may be the pretext for a new bill waiving laws along the Canadian boundary, or an “energy crisis” may provide a convenient excuse to do away with laws that prevent drilling in the Arctic National Wildlife Refuge.

“The Supreme Court’s inaction will likely have repercussions beyond the destruction wrought by the border wall,” he said.


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