Chertoff Waives Laws to Build Border Fence, Critics Steaming Mad

Homeland Security Secretary Michael Chertoff is using emergency powers granted to him by Congress to build the fence along the U.S.-Mexican border — and furious liberal critics are seeking to block it.

Last week Chertoff issued waivers suspending more than 30 laws he asserted could interfere with “the expeditious construction of barriers” in four border states.

Among the laws affected were those protecting the environment, endangered species, migratory birds, the bald eagle, and Native American graves.

Chertoff was granted the power in 2005 to void any federal law that could interfere with the construction of the border fence, Adam Liptak reported in the New York Times.

In granting the power to the secretary of homeland security, Congress barred the courts from questioning the secretary’s actions, meaning Chertoff’s decisions are final.

“Criminal activity at the border does not stop for endless debate or protracted litigation,” Chertoff explained in a release last week. “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. At the same time, we value the need for public input on any potential impact of our border infrastructure plans on the environment – and we will continue to solicit it.”

Chertoff had earlier issued similar waivers, and one of them is being challenged in a case that has reached the U.S. Supreme Court.

The challenge came from two liberal environmental groups, Defenders of Wildlife and the Sierra Club. They sued Chertoff last year over his suspension of 19 laws that could have interfered with the border fence construction in the San Pedro Riparian National Conservation Area in Arizona.

The groups maintained that Congress had given Chertoff and the executive branch too much power.

In December, Judge Ellen Segal Huvelle of Federal District Court in Washington rejected the challenge and permitted fence construction to proceed.

A petition asking the U.S. Supreme Court to hear the case was filed three months later. If the court agrees to hear the case, its decision will in all likelihood apply to last week’s waivers as well, according to the Times.

Liptak writes that in the view of the environmental groups, “it is the combination of two factors — the broad granting of power to the executive branch and cutting the judicial branch out of the process — that makes the 2005 law so pernicious.”