Homeland Security's Power on US Mexico Border Challenged

* Update Below

You have undoubtedly heard about the border fence being built on the U.S. Mexico border. You may not have heard what is being done in order to get it built.

When congress enacted the the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, they gave the head of Homeland Security absolute and unreviewable authority to violate any state or local laws in order to get the border fence up.

Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section.

Just to be clear, the head of Homeland Security gets to define what the law means. She can do whatever she wants. Her decisions cannot be challenged by a court unless the challenge is directly related to a violation of the constitution.

In this case, the former Secretary of Homeland Security, Michael Chertoff, decided that his mandate was to do whatever was necessary to build the fence and maintain the fence. Expanding his mandate from building to maintaining means this power goes on into perpetuity. He refused to state what laws he was violating (simply that he was violating a bunch) and never clarified how far this legal no mans land extended.

The federal government was sued by the County of El Paso, Frontera Audubon Society and others. Lower courts ordered that the government did have the authority to wave all local laws in carrying out the instructions of congress - problems with water services or endangered species be damned.

There are many who don't give a hoot whether or not U.S. citizens have their property taken away or get caught on the wrong side of the fence. And there are many who don't care whether those citizens can receive water and other basic services or whether or not endangered species die. But even those people should surely be concerned if congress can give one person or agency carte blanche to ignore whatever laws they see fit, at their discretion, with no check on their power.

This unprecedented infringement on private, local government, and state rights is coming before the Supreme Court for review tomorrow. The petitioners argue that judicial review should be a requirement. Let's hope they hear it.

For links to all the relevant documents in the case, check out Turtle Talk.

* The Supreme Court is refusing to hear the case. Looks like Homeland Security can do whatever it wants.