Fight over border fence – environmental waivers could reach Supreme Court

Doc asked me to comment on this article. That was risky, as he never knows where I will go with my comments (until he reads them). So here we go. Now let’s start with a glaring attack of the obvious – doing nothing will solve nothing and a fence will never stop everyone.

The goal of a super sized fence has never been to trap some people and some animals on one side of the border and some on the other. Are environmental concerns more or less important than human life? Will the fence pay for itself over time by limiting the billions we spend on illegals? Will building a fence cause a collapse of Central and South American economies or force them to deal with the hard issues driving their people north?

I’d like to discuss those issues and more but someone is spinning the fence as an environmental issue and not a human one so ….

By DAVID McLEMORE, 14 April, 2008, The Dallas Morning News
The U.S. Supreme Court may get a chance to join the fractious debate over building fencing along the U.S.-Mexico border.

A legal challenge by two environmental groups seeking to limit enhanced Department of Homeland Security powers to suspend more than 30 laws to build the fence is gathering support in Congress.
-This is the same congress whose failure to enforce the laws caused this problem to get out of control.

But at least one constitutional expert said that although the legal challenge underscores the broad array of powers Congress has delegated to Homeland Security, “environmentalists face an uphill battle.”
-It seems every dam, bridge, highway and power plant has drawn flak from environmentalists. The last time I checked the entire idea of a democracy was majority rule. That said, governments that are not closely watched tend to get out of control. Our congress is proof we failed to carefully watch them.

“There is a legitimate legal gripe here, in that there are serious questions about how much power Congress can delegate to other branches of government,” said Jonathan Turley, a constitutional law authority at George Washington University Law School.

Homeland Security Secretary Michael Chertoff announced the waiver of about three dozen environmental laws to expedite construction of the border fence in Texas and Arizona on April 1.
-Agree or disagree he made a decision, that makes him rare among politicians

Fourteen House Democrats, including Homeland Security Chairman Bennie Thompson, D-Miss., and seven other committee chairmen then said they would file friend-of-the-court briefs asking the Supreme Court to take up the lawsuit on whether the department had overstepped constitutional limits.

“This blanket waiver of laws like the Clean Air Act and the Safe Drinking Water Act is a clear and disturbing abuse of the secretary’s discretion,” said U.S. Rep. John Dingell, D-Mich., chairman of the House Energy and Commerce committee. “Congress’ efforts to seek justification for this waiver from DHS have been stonewalled, which leads me to believe none exists.”

U.S. Rep. Pete Sessions, R-Dallas, disagrees, saying continued illegal immigration and violence is a greater “risk to good conservation policies.”

“For far too long, the border fencing project has been hijacked by bureaucratic red-tape policies that fail to make our border any safer or cleaner,” he said. “… I fully support Secretary Chertoff’s decision to prioritize the security of our nation over procedural preferences and the rule of law over regulatory roadblocks.”
-I would like to see the issue solved by committee; gaps are easier to watch and control than miles of dessert, animals and water could freely flow and we could increase our security. The solution to any problem starts by identifying the problem.

Unlimited power

The most recent challenge by the environmental groups – the Sierra Club and Defenders of Wildlife – to Mr. Chertoff’s power stems from their 2007 federal lawsuit alleging that Homeland Security’s use of waivers violated the Constitution’s separation of powers.

A federal court ruled against the groups in December, noting that Mr. Chertoff had done what Congress had given him the power to do. In March, the environmentalists filed a petition for writ of certiorari with the U.S. Supreme Court.

It was the only venue left. Thanks to a rider attached to the Real ID act enacted in 2005, Congress gave Homeland Security almost unlimited power to waive any laws necessary to build the fence.

Congress also denied oversight by federal appeals courts to any challenges, except for a request to the Supreme Court to review.

“We are pleased to see members of Congress getting involved in challenging this unconstitutional waiver authority,” said Oliver Bernstein, spokesman for the Sierra Club. “And we would hope that action leading to revocation of the authority will help our case in the Supreme Court.”
-Unless those attempting to stop the fence are offering another solution they are part of the problem and not the solution.

‘Waiver happy’

In his announcement of the most recent waivers, Mr. Chertoff said that Homeland Security remains committed to environmental responsibility and that the agency “is neither compromising its commitment to responsible environmental stewardship nor its commitment to solicit and respond to the needs of state, local and tribal governments, other agencies of the federal government and local residents.”

He stressed that his agency will continue to work closely with the Department of Interior and other federal and state resources management agencies to ensure that impact to the environment and cultural and historic artifacts is properly analyzed and minimized.
-Good, so what’s the problem?

But the size and scope of the use of waivers to clear the path for construction of the border fence is virtually unprecedented, Dr. Turley said.
-A meaningless excuse. We built highways across the country. We had to get the same types of waivers for a much bigger area and across many different types of eco-systems.

More troubling, he added, is the apparent dismissal of due process as “endless debate or protracted litigation.”

Mr. Chertoff has said the waivers are necessary because “criminal activity at the border does not stop for endless debate or protracted litigation.”
-Great point, criminal illegals are attacking American citizens daily, something has to be done to protect them. A fence may not stop criminals it but it will slow them down and force them into smaller areas.

But Dr. Turley said Congress has in recent years “become almost waiver happy.”
“They see it as a form of no-cost legislating,” he said. “But there is no evidence Congress considered the implications of giving Homeland Security such broad waiver power.”
-“Congress considered” is an oxymoron.

There are indications that Congress may be trying to regain some of the authority it gave away.
-I’d like congress to refund some of my money they wasted on pork, guess we are both SOL.
Conservation bill

U.S. Rep. Raul Grijalva, D-Ariz., has written a bill known as the Borderlands Conservation and Security Act that would repeal the ability of DHS to waive health and environmental laws while including border protections.
And it’s drawing support in Congress, including from U.S. Rep. Earl Blumenauer, D-Ore., and eight Texas members of Congress.
-Write down those names folks and if a criminal illegal harms you or your family consider sending them a heart felt letter to let them know how you felt.

“It is unprecedented that a single person can be above the law without any judicial appeal or remedy,” Mr. Blumenauer said. “And it is an absurd claim that he must waive the Safe Drinking Water Act and Clean Air Act, to name a few, in order to build this border fence.”
-If no one is above the law enforce our immigration laws.

Mr. Grijalva said he will hold hearings on the impact of the waivers April 28 at the University of Texas-Brownsville.
-Victim families I encourage you to attend and ask them why a jackrabbit is more important than you are.

“My legislation does not impede or deny border security but it restores confidence in this government to uphold laws as it pursues security,” he said.
-Which, btw is a legitimate job of any government.

Meanwhile, U.S. Sen. Jeff Bingaman D-N.M., sent letters asking Mr. Chertoff and Interior Secretary Dirk Kempthorne to justify the waivers.
-Elections folks, remember to vote the next chance you get. If you want security for your family vote for the fence along with its supporters, if jackrabbits are more important to you-vote to leave people like Bingaman in office.

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