WAIVED ON THE BORDER: THE ADMINISTRATIVE PROCEDURE ACT OF 1946

By Nat Stone

Wary of New Deal-era government expansion, and after costly brushes with fascism under Nazi Germany and Imperial Japan, in 1946 Congress passed the Administrative Procedure Act to protect United States citizens from abuses by federal agencies.

As President Roosevelt had observed during the decade-long process of negotiating the APA, to entrust federal agencies with legislative, executive, and judicial powers was also to risk corrupting these powers, and "to develop a fourth branch of government for which there is no sanction in the Constitution."

The Administrative Procedure Act authorizes and standardizes the procedures of 55 federal agencies responsible for implementing and enforcing federal laws. A manual for governance, APA requires transparency in agency rulemaking, opportunity for citizen participation, and protection of individual privacy.

Further buttressing the foundation of American civil rights, these among many provisions of the Administrative Procedure Act require that:

Agencies shall "give interested persons an opportunity to participate in the rule making…"

Agencies shall "maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized."

Agencies shall "establish appropriate administrative, technical, and physical safeguards to insure the security and confidentiality of records…"

Whenever any agency fails to comply…in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency…"

A person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel…"

Under authority of Section 102 of the 2005 REAL ID Act, The Administrative Procedure Act is one of 36 federal laws now waived, without explanation, by the Department of Homeland Security for border wall construction.

Left unchecked, the unprecedented vagueness of Section 102 waiver authority, and the unjustified muting of the Administrative Procedure Act, may be repeated for other federal projects elsewhere in the nation.

For true collaboration between DHS and local agencies for appropriate border management, and to check Section 102 waiver authority, please support HR 2593, The Borderlands Conservation and Security Act.

The full text of HR 2593 can be found here:
http://www.govtrack.us/congress/billtext.xpd?bill=h110-2593.

Here is the complete list of laws that Department of Homeland Security Secretary Chertoff waived using his Real ID Act authority on April 1, 2008:

National Environmental Policy Act
Endangered Species Act
Federal Water Pollution Control Act (commonly referred to as the Clean Water Act)
National Historic Preservation Act
Migratory Bird Treaty Act
Clean Air Act
Archeological Resources Protection Act
Safe Drinking Water Act
Noise Control Act
Solid Waste Disposal Act
Comprehensive Environmental Response, Compensation, and Liability Act
Archaeological and Historic Preservation Act
Antiquities Act
Historic Sites, Buildings, and Antiquities Act
Wild and Scenic Rivers Act
Farmland Protection Policy Act
Coastal Zone Management Act
Wilderness Act
Federal Land Policy and Management Act
National Wildlife Refuge System Administration Act
Fish and Wildlife Act of 1956
Fish and Wildlife Coordination Act
Administrative Procedure Act
Otay Mountain Wilderness Act of 1999
Sections 102(29) and 103 of Title I of the California Desert Protection Act
National Park Service Organic Act
National Park Service General Authorities Act
Sections 401(7), 403, and 404 of the National Parks and Recreation Act of 1978
Sections 301(a)-(f) of the Arizona Desert Wilderness Act
Rivers and Harbors Act of 1899
Eagle Protection Act
Native American Graves Protection and Repatriation Act
American Indian Religious Freedom Act
Religious Freedom Restoration Act
National Forest Management Act of 1976
Multiple Use and Sustained Yield Act of 1960