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Can U.S. Security Chief Do Whatever He Wants?

Posted on: Thursday, 10 April 2008, 06:00 CDT

By Adam Liptak

Securing the U.S. borders is so important, Congress says, that Michael Chertoff, the homeland security secretary, must have the power to ignore any laws that stand in the way of building a border fence. Any laws at all.

Last week, Chertoff issued waivers suspending more than 30 laws he said could interfere with "the expeditious construction of barriers" in Arizona, California, New Mexico and Texas.

The list included laws protecting the environment, endangered species, migratory birds, the bald eagle, antiquities, farms, deserts, forests, American Indian graves and religious freedom.

The secretary of homeland security was granted the power in 2005 to void any federal law that might interfere with fence building on the border. For good measure, Congress forbade the courts to second- guess the secretary's determinations.

So long as Chertoff is willing to say it is necessary to void a given law, his word is final.

This delegation of power to Chertoff is unprecedented, according to a report from the Congressional Research Service. It is also, if papers filed in the Supreme Court last month are correct, unconstitutional.

People can disagree about the urgency of border security and about whether it is more or less important than, say, the environment. Congress is entrusted with making those judgments, and here it has spoken clearly. In the process, it has also granted the executive branch more of just the sort of unilateral power the Bush administration has so often claimed for itself.

No one doubts that Congress may repeal old laws through new legislation. But there is a difference between passing a law that overrides a previous one and tinkering with the structure of the Constitution itself. The extraordinary powers granted to Chertoff may test the limits of how much of its own authority Congress can cede to another branch of the government.

Chertoff explained the reasoning behind the law in a news release last week. "Criminal activity at the border," he said, "does not stop for endless debate or protracted litigation."

Chertoff has issued three other similar waivers, and a challenge to the constitutionality of one of them has just reached the Supreme Court. If the court decides to hear the case, its decision will almost certainly apply to the waivers issued last week as well.

The case was brought by two environmental groups, Defenders of Wildlife and the Sierra Club. They sued Chertoff last year over his decision to suspend 19 laws that might have interfered with the construction of a border fence in the San Pedro Riparian National Conservation Area in Arizona.

Congress, the groups said, had given Chertoff too much power.

"It is only happenchance that the secretary's waiver in this case involved laws protecting the environment and historic resources," the groups told Judge Ellen Segal Huvelle of the federal district court in Washington. "He could equally have waived the requirements of the Fair Labor Relations Act to halt a strike, or the provisions of the Occupational Safety and Health Act in order to force workers to endure unsafe working conditions."

The groups said Congress cannot hand over unbridled power to the executive branch even as it cuts the courts out of the picture. They relied mostly on a 1998 Supreme Court decision striking down the Line Item Veto Act, which had allowed the president to cancel parts of laws.

In December, Huvelle rejected the challenge and allowed construction to proceed. She said she had no jurisdiction to decide whether Chertoff was correct in saying the waivers were necessary.

A petition asking the Supreme Court to hear the case was filed three months later.

In addition to forbidding judges from second-guessing Chertoff's decisions, Congress forbade federal appeals courts from becoming involved at all.

In their petition, the environmental groups said the Supreme Court had never upheld a broad delegation of power like that given to Chertoff without the possibility of judicial review of executive branch determinations. Nor, they said, had any appeals court.

It is the combination of those 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, the groups say.

The government's response is due next week. In a brief filed in the district court last year, Justice Department lawyers told Huvelle that the urgency of border security must trump other interests. They added that Congress may delegate particularly broad powers in the areas of national security, foreign affairs and immigration because the Constitution gives the executive branch great authority in those areas.

The line-item veto decision does not apply, they said, because Chertoff is not repealing laws for all purposes, just suspending them for his fences.

It is true that Congress gave up its powers here voluntarily. But Justice Anthony Kennedy had a response to that point in the line-item-veto case.

"It is no answer, of course, to say that Congress surrendered its authority by its own hand," he wrote. "Abdication of responsibility is not part of the constitutional design."

Source: International Herald Tribune

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