Law Students

Waive Goodbye to Environmental Law

By Max Power

Alright, back up the moving trucks. Yesterday the Department of Homeland Security issued itself two waivers to enable itself to completely bypass all environmental laws to construct a 470-mile chunk of border fence through a vast section of the Southwest. (See here, here, and here for coverage.) The authority for these waivers comes from Section 102(c) of IIRIRA as amended by the REAL ID Act of 2005. (Note: It is unclear which law is being enforced. Chertoff cites to IIRIRA for his authority, but I have seen the Real ID Act cited elsewhere.) This law allows the Secretary of DHS to "waive all legal requirements such Secretary, in such Secretary's sole discretion, determines necessary to ensure expeditious construction of the [border fence.]" Here is Chertoff's statement regarding his use of the waiver.

Predictably this action has been couched in terms of national security needs. While I do think there are legitimate national security issues related to border security, it is difficult for me to believe that this is anything more than xenophobia wrapped in the flag. But my political leanings aside, what really outrages me here are the legal issues. How can the Secretary of DHS, an Executive appointee, waive Congressional laws? Lawmaking (and lawrepealing) is the job of Congress, and they cannot delegate that duty to the Executive. Moreover, this waiver right is unlimited. Not only can Chertoff waive federal and state environmental laws, but he may waive all legal requirements in his sole discretion. Child labor? Health codes? Overtime pay? Why the heck not!

A couple of environmental organizations have taken up the cause, challenging section 102(c) as an unconstitutional delegation of the legislative power and a violation of Art. 1, Sec. 7 of the Constitution. (Cert petition and more info; note that this lawsuit was filed last month in response to other DHS waivers). I hope the Supreme Court takes the case and declares 102(c) unconstitutional. As far as I'm aware, we don't give such unfettered discretion to any other government official. It is ridiculous enough to allow a single person to overturn federal laws--allowing it for the sole purpose of building a border fence is simply beyond comprehension. So, who's up for some hockey, eh?

Full post as published by Nuts & Boalts on April 02, 2008 (boomark / email).