Border fence waivers challenged

Fourteen U.S. congressmen publicly criticized Homeland Security Secretary Michael Chertoff on Tuesday for his decision to bypass more than 30 laws to expedite construction of the border fence.

The legislators called on the U.S. Supreme Court to overturn the 2005 law that granted him waiver authority, setting up a potential legal battle over what critics are calling one of the most significant power grabs by the executive branch in years.

"This waiver by the secretary of Homeland Security is a direct challenge to Congress's constitutional role," said House Homeland Security Committee Chairman Bennie G. Thompson, D-Miss., in a written statement. "The American people entrust Congress to ensure that the laws of this land are faithfully executed - not excused - by the executive branch."

The Department of Homeland Security deems the waivers necessary to meet the congressionally mandated deadline for completing fence construction by the end of this year. Ongoing lawsuits could delay the process for years, Chertoff said while announcing he would invoke his authority last week.

"Criminal activity at the border does not stop for endless debate or protracted litigation," he said at that time.

Unfazed by that rhetoric, Thompson and his dissenting colleagues announced Monday that they would file a brief in support of environmental groups challenging the constitutionality of Chertoff's waivers.

Their ranks include several U.S. House committee chairs and legislators whose districts won't be directly affected by the barrier, indicating that efforts to block fence construction have gained support outside the border region.

South Texas U.S. Reps. Silvestre Reyes, D-El Paso, and Solomon Ortiz, D-Corpus Christi, are among the congressmen who signed Monday's announcement.

"I do not support DHS' continued disregard for border communities," Reyes said. "This recent attempt to bypass more than 20 laws and regulations to pursue an already ill-advised idea should not move forward."

SWEEPING POWER

Congress granted Chertoff the power to waive "all legal requirements" and limit appeals-court oversight as part of an amendment to the 2005 Real ID Act.

At the time, the nonpartisan Congressional Research Service said "waivers of similar breadth do not appear to be common in federal law."

So far, Chertoff has invoked that authority on six occasions - four times between 2005 and last year for projects in California and Arizona and twice more last week to facilitate remaining fence construction along the southwestern border.

In each case, DHS has pledged to continue working with environmental advocacy groups to address their concerns.

But two organizations - Defense of Wildlife and The Sierra Club - sued the government in October after Chertoff's third waiver, which allowed government contractors to begin fence construction on an Arizona wildlife refuge.

They argued that the Real ID Act's provisions violate constitutional separation of powers by virtually eliminating court oversight and granting the executive branch power to side-step Congress and repeal federal laws.

The Supreme Court has not yet decided whether to hear arguments in the case, but the congressmen's offer of support Monday could help pressure justices to consider it, said Brian Segee, staff attorney for Defense of Wildlife.

In the interim, border fence construction continues.

"If the case is picked up, it almost certainly won't be heard until the fall," Segee said. "There will be damage done that is hard to reverse."

SURVEY SUITS CONTINUE

Current plans call for 370 miles of fence and 300 miles of vehicle barriers along the southern U.S. border. So far, 309 miles of fencing have been erected, varying from metal barriers to impede pedestrians to concrete posts designed to block vehicles.

But from local leaders who say they were not consulted about plans to build in their areas, to landowners who claim the government failed to negotiate rights to access their property, Homeland Security has come under intense criticism for the way it has handled the fence's development stages.

Eight landowners in Hidalgo and Starr counties remain engaged in federal court battles to try to thwart government efforts to conduct surveys on their properties.

At a hearing March 17, they argued U.S. Border Patrol agents failed to negotiate terms of access and threatened them with lawsuits if they didn't comply.

But so far, U.S. District Judge Andrew S. Hanen has ruled on only one of the cases. In a decision handed down last week, he said "the United States engaged in a bona fide effort to negotiate" and ordered Los Ebanos landowner Pamela Rivas to let surveyors on her property.

Rivas' attorney, Celestino Gallegos of Texas RioGrande Legal Aid, has filed an appeal.

"Their attitude is: ‘We're the government - we can do whatever we want,'" he said. "Waiving laws and not following statutes - I think it's pretty much par for the course."
____

Jeremy Roebuck covers courts and general assignments for The Monitor. You can reach him at (956) 683-4437.