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Congress Members Oppose DHS Waiver Powers |
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by Mickey McCarter
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Wednesday, 09 April 2008 |
14 Congressmen file a brief to support a petition before the Supreme Court to declare powers granted to the DHS Secretary unconstitutional
A group of 14 Democratic members of Congress--including House Homeland Security Chairman Bennie Thompson (D-Miss.)--declared their intent Monday to urge the US Supreme Court to take up a case against the use of waiver authority by Secretary of Homeland Security Michael Chertoff to build border fencing.
The congressman will file an amicus brief by April 17 on behalf of Defenders of Wildlife and the Sierra Club, which have petitioned the Supreme Court to declare unconstitutional the secretary's authority to waiver laws that may delay construction of border fencing.
A Republican-controlled Congress granted the authority to Chertoff in Section 102C of the REAL ID Act (Public Law 109-013) in 2005. Thompson, however, argued the secretary should not use any such authority to ignore laws passed by Congress.
"This blanket waiver of laws like the Clean Air Act and the Safe Drinking Water Act is a clear and disturbing abuse of the Secretary's discretion," Rep. John Dingell (D-Mich.) added in the statement. "Congress' efforts to seek justification for this waiver from DHS have been stonewalled, which leads me to believe none exists."
The Defenders of Wildlife, a nonprofit conservation organization dedicated to the protection of natural habitats, field a petition for writ of certiorari, requesting the Supreme Court to consider voiding Chertoff's waiver authority under the REAL ID Act, on March 17, Bob Dreher, vice president for conservation law at the Defenders of Wildlife, told HSToday.us.
Sympathetic and opposing parties have 30 days to respond to the court, but the Department of Homeland Security (DHS) may request an extension for an opposing response.
"We believe that waiver authority is an unconstitutional delegation of legislative power because it confers sweeping authority without any opportunity for judicial review to ensure the Secretary stays within Congress' direction. It also effectively gives him the power to repeal the law without complying the Constitution's requirements for enactment of repeal of laws," Dreher stated.
After DHS files its response, the Defenders of Wildlife would have 10 days or so to file a reply. The petition then goes on a schedule for the court to examine and then determine whether or not to grant a review of the case.
"Our hope is that the court will make a decision on hearing the case before the end of its term in June. If they did grant review, they would presumably set a briefing schedule and a hearing date for late fall of next year," Dreher said.
During that time, the Defenders of Wildlife can only wait for the court to act. It has already lost a federal district court case, which decided in favor of DHS. Under the law, the only option open to the plaintiff was to request that the Supreme Court review the constitutionality of the waiver authority, which enabled Chertoff last week to suspend more than 30 laws that could slow down border fencing construction in Arizona, California, New Mexico and Texas. Those laws ranged from environmental protection statutes to religious freedom guarantees.
Defenders of Wildlife could request an emergency injunction to halt the construction, but such injunctions are difficult to obtain, Dreher said.
Meanwhile, Rep. Raúl Grijalva (D-Ariz.) has introduce a bill titled the Borderlands Conservation and Security Act of 2007 (HR 2593), which would effectively rescind Section 102C of the REAL ID Act, thus eliminating the DHS waiver authority.
DHS spokeswoman Laura Keehner confirmed that DHS would argue against the petition before the Supreme Court.
"The United States plans to file a motion urging the court not to take the case," Keehner told HSToday.us. "We are not going to get into specific legal issues until we make the legal filing."
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Mickey McCarter |
| About the author: |
| eNewsletter Editor/Senior Washington Correspondent,
is a journalist with more than a decade of experience in reporting
on
military affairs and information technology.
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