Chertoff Breaks 34 Laws to Build Wall Against "Criminal Activity at the Border"

I applaud the Houston Chronicle's editorial Bulldozing the laws, which calls on Congress to act at once to reverse the "irresponsible grant of power" it gave Homeland Security Secretary Michael Chertoff "to bypass all laws deemed obstacles to the expeditious construction of a security fence along the southern border with Mexico."

The editorial exposes the utter stupidity, arrogance and hypocrisy of those who see no higher priority than halting every "illegal" immigrant trying to gain access from our impoverished neighbor to the south--even if Chertoff has to violate 34 other federal laws to do so. Let's promote our blessed respect for the law by violating 34 of them! Let's trample decades of environmental protections, wildlife conservation projects, property rights statutes and court rulings to protect the sovereignty of the United States! Shouldn't that tell us how wrong-headed and dangerous the wall idea is?

I would add just one thought to the editorial: if Congress does not act quickly, impacted parties should seek an emergency restraining order against Chertoff in federal court, on the grounds that he is wildly exceeding the legislative intent of the waiver Congress allowed him for one specific space on the border. The editorial follows:

When Congress passed the Real ID Act three years ago, it included a little debated provision, section 102, giving the Homeland Security secretary extraordinary power to bypass all laws deemed obstacles to the expeditious construction of a security fence along the southern border with Mexico.

As is becoming increasingly obvious, it was an irresponsible grant of power by people elected to respect and defend the Constitution and our system of laws. They should have known better.

In his fourth exercise of the waiver provision, on April Fool's Day, Homeland Security Secretary Michael Chertoff announced the broadest assertion of authority yet, declaring that 34 federal laws would be ignored in order to complete nearly 500 miles of fencing that will impact environmentally sensitive areas in Texas, New Mexico, Arizona and California. The move will allow authorities to proceed with fence construction without issuing final environmental impact statements for which millions of taxpayer dollars have already been spent.

"Criminal activity at the border does not stop for endless debate or protracted litigation," stated Chertoff. "Congress and the American public have been adamant that they want and expect border security. We're serious about delivering it, and these waivers will enable important security projects to keep moving forward."

The waiver was initially promoted by congressional supporters as a limited exception designed to give federal officials flexibility in speeding the completion of a segment of fencing across environmentally sensitive wetlands near San Diego.

Unfortunately, as with so many other instances in which the Bush administration has asserted the right to ignore laws it found inconvenient, the waiver now is being used as an all-purpose bludgeon to flatten dozens of environmental and property rights statutes.

Eagle Pass Mayor Chad Foster, chairman of a coalition of Texas border community officials, says the decision to override existing laws indicates that those incomplete environmental studies would have documented serious problems created by the fence construction, because "otherwise, the federal government wouldn't have to resort to such drastic measures." A spokesman for Secretary of the Interior Dirk Kempthorne confirmed that under existing legal requirements, the agency could not grant approvals to allow DHS to construct infrastructure on Interior Department border lands.

Earlier this month, U.S. Fish and Wildlife Service deputy director Kenneth Stansell warned in a letter to the executive director of the federal Customs and Border Protection agency that a new design for fence segments in Hidalgo County in South Texas would undermine a quarter-century of work in creating a 300-mile wildlife corridor. That land has helped conserve more than 20 endangered species that migrate between the U.S. and Mexico. According to Stansell, substituting an impermeable 16- to 18-foot wall built atop flood levees for a wildlife-friendly structure that allows small animals to pass through will impair the purpose of the wildlife corridor. Invoking the waiver stifles legal opposition to that reasonable alternative plan.

Already, managers of two South Texas nature refuges, the Sabal Palm Audubon Center and the Nature Conservancy Preserve, say the waivers will effectively close their facilities because their property would be isolated in a zone between Mexico and the fence.

The multibillion-dollar plan to erect a wall on the border was flawed from the beginning. Its folly now is being compounded by a calculated effort to undermine the precious system of laws that provide our real bulwark against tyranny. Congress should never have granted such power, and it must act promptly to minimize the damage by repealing the Real ID Act waiver.