The No Border Wall Coalition is deeply disturbed by the announcement that Department of Homeland Security Secretary Michael Chertoff has decided to “waive in their entirety” 36 federal laws to build walls along the entire United States’ southern border. This represents an unprecedented abuse of authority on Secretary Chertoff’s part, and clearly demonstrates the need for an immediate repeal of section 102 of the Real ID Act. Obeying the law is not voluntary, it is mandatory, and Secretary Chertoff cannot claim that he is sweeping aside a host of laws on the border in defense of immigration laws. In a nation of laws all laws must be respected, not just those that are convenient.
Equal protection under the law is meant to be a fundamental right shared by every American, but the Real ID Act makes the legal rights of citizens who live near the border conditional on Secretary Chertoff’s whims. Section 102 of the Real ID Act of 2005 states, “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.” No one else is granted this extreme power under any circumstance. The president cannot waive our nation’s laws even in times of national crisis, and Secretary Chertoff cannot waive the laws that protect citizens who live away from the border. Only border residents may have their legal protections waived.
Secretary Chertoff claims that the Secure Fence Act mandates walls along the border, and he therefore has no choice but to build border walls no matter the cost. The walls that are scheduled for construction in 2008 will destroy homes, businesses, and farms, will slice through communities, parks, and wildlife refuges, and will cost tens of billions of dollars. Border walls will not stop anyone from entering the United States, and in July 2007 the Congressional Research Service concluded that the California border wall “did not have a discernible impact on the influx of unauthorized aliens coming across the border in San Diego.” Recognizing this fact language was inserted into the 2007 Omnibus Spending bill that allowed Secretary Chertoff to decide whether or not walls would be built in a given area based on tactical considerations, and required that he consult with local stakeholders. Despite the fact that his hands are no longer tied, Secretary Chertoff prefers to act as though the Secure Fence Act is still the law of the land, and it is apparently the only law that he continues to respect.
In announcing the Real ID waivers Secretary Chertoff said, "Criminal activity at the border does not stop for endless debate or protracted litigation." The waivers are essentially an admission that the border wall will itself violate up to 36 federal laws, making construction of the wall a criminal act. If Chertoff is genuinely concerned with criminal activity he should ensure that the agency that he oversees complies with the law.
The only reason for Secretary Chertoff to waive these laws is because he knows that the border wall will violate them. In setting these 36 federal laws aside Secretary Chertoff sets himself above the law. If congress allows unchecked power to remain in the hands of an unelected administration appointee they are complicit in fundamentally undermining the rule of law. Leaving the Real ID Act on the books and allowing Chertoff’s waivers to stand sets a precedent that should outrage the American people. If our nation’s laws can be set aside to build a border wall today, they may be similarly set aside for whatever crisis politicians discover in the next election cycle.
The No Border Wall coalition calls on congress to repeal section 102 of the Real ID Act and restore the rule of law. We also urge the Supreme Court to take up the constitutional challenge brought by the Defenders of Wildlife and Sierra Club to Secretary Chertoff’s earlier waiver of 19 federal laws to force the border wall through the San Pedro Riparian National Conservation Area in Arizona. Allowing one man to overrule laws passed by Congress and signed by the President for the express intent of circumventing judicial oversight is fundamentally un-American.