On April 1, the Homeland Security secretary waived 36 federal acts for construction of southern border walls and fences.
First built in 1978, such obstacles have mainly detoured traffic.
For more than a year, border residents have protested barrier expansion, especially along the Rio Grande. Our nation’s third longest river, representing nearly two thirds of the southern boundary, is bridged by extended families and sibling river towns older than the Treaty of Guadalupe Hidalgo.
Private citizens and public officials argue that fences and walls damage diplomacy, degrade environment, and stunt economy. Combined, these effects threaten long-term national security.
For all the debate over border barriers, however, a potentially larger issue lies in the unprecedented waiver authority behind their construction. Section 102 of the REAL ID Act delegates waiver power so vaguely as to blur the separation of powers, and to enable an executive appointee to nullify basic civil rights.
For construction of barriers and access roads, “the Secretary of Homeland Security shall have the authority to waive…all laws such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction…”
Further, use of this authority is subject to “no judicial review.”
There is ample precedent for the delegation of waiver authority to federal agencies, but with strict limits. Normally Congress specifies the laws (or just sections) to be waived, as well as waiver purpose and duration. Federal agents granted waiver powers normally are experts in the subjects of the waived laws, and delegation presumes compliance oversight and availability of judicial review.
But with mere ‘necessity’ for guidance, and with “sole discretion” for rationale, Secretary Chertoff’s April 1 waiver, without expiration, muted 36 federal acts along the southern border, as well as any relevant federal or state statutes.
Among the laws now waived are the Administrative Procedure Act, the National Environmental Policy Act, and the Religious Freedom Restoration Act.
Where border walls are rising, legal fences protecting civil rights have fallen.
