Analysis: The Court and the “Secure Fence”

By Lyle Denniston
on Apr 2, 2008 at 4:10 pm

Analysis

A move on Tuesday by the government’s top homefront security official to suspend nearly three dozen federal laws as a border security measure has put a new focus on a pending appeal asking the Supreme Court to curb that kind of authority, or at least to assure that it gets a full review in federal courts.

The controversy focuses on one aspect of the laws governing construction of a huge fence along the U.S.-Mexico border, to try to stop the flow of illegal immigrants and illegal drugs into the U.S.  Under the Secure Fence Act passed by Congress in 2006, the government is authorized to build more than 700 miles of reinforced fence along the border, stretching from California to Texas.

On Tuesday, in the latest action designed to aid the fence construction, Homeland Security Secretary Michael Chertoff decided to suspend “all legal requirements” imposed by some 35 federal laws and numerous state and local laws in order to “expedite security improvements at the southwest border.” His department announced the two legal “waivers” in this press release.

This waiver authority, while now used mainly to clear the legal route for the border fence, actually originated in a broad new immigration law passed in 2005.  The provision at issue allows the Homeland Security secretary to waive “all legal requirements” if he decides that is necessary to speed up construction of physical barriers and roads along the border.

Chertoff’s waivers this week will cover a 470-mile stretch of fence, towers and detection equipment in four states plus a 22-mile project in Hidalgo County  Both waivers suspend a wide array of environmental and land management laws, and news accounts indicated Tuesday that the Hidalgo County waiver was done over the environmental objections of the U.S. Fish and Wildlife Service, concerned about the project’s impact on wildlife habitat. 

Under the Secretary’s waiver authority, he has sole discretion to decide when to suspend laws that he deems likely to inhibit barrier construction.  The law sharply limits the right to sue to challenge any such waiver. A lawsuit may complain only about a claimed constitutional violation, and thus a claim based on failure to apply the federal law properly is barred. Any lawsuit goes to a single-judge District Court for review, with no right to appeal to a Circuit Court, and the only appeal route open is to the Supreme Court, but the Justices do not have to hear any appeal if they choose to deny it.

Those are the provisions at issue in the case now awaiting the Supreme Court’s action — Defenders of Wildlife, et al., v. Chertoff (docket 07-1180).  That case began after one of Chertoff’s earlier waivers of laws in order to facilitate a stretch of fence in the wildlife-rich San Pedro conservation area in California.  The petition in 07-1180 was filed on March 17, and a government response will be due April 17, unless an extension of time is granted. The petition and the appendix can be downloaded here. After the government responds, a reply brief by Defenders of Wildlife and the Sierra Club is expected to notify the Court of Chertoff’s new waivers.

The appeal asks the Court to decide two issues, claiming that the 2005 law’s provisions violate constitutional separation of powers principles. The petition asks whether the strict limits on court review of any waivers amount to an unconstitutional delegation of legislative power to the Homeland Security secretary because there is no realistic way to test whether the secretary has obeyed the statute. It also asks whether the waiver authority is so wide that it actually leads to Executive Branch repeal of existing laws.  U.S. District Judge Ellen Segal Huvelle in Washington, D.C., rejected both challenges in a ruling in December. Under the law, any appeal from that ruling can only go to the Supreme Court on certiorari.