Waiver of Democracy

In the rush to build the fence and score political points, Congress has handed federal managers a powerful new legal tool, which has been employed to ignore the serious and obvious consequences of such a policy and overcome the thoughtful objections of many concerned voices from the border region. Department of Homeland Security (DHS) Secretary Michael Chertoff, under the Real ID Act of 2003, now has the authority to waive all U.S. laws in ordering fence construction. This includes not just environmental laws such as the National Environmental Policy Act (NEPA), Endangered Species Act, Clean Water Act, Safe Drinking Water Act, and so on, but also laws dealing with cultural and historical preservation, labor laws, and any others that may be perceived to impede construction. This unprecedented and dangerous concentration of power in the hands of a single unelected, unaccountable bureaucrat is profoundly anti-democratic on its face. The Real ID waiver was initially sold to members of Congress as a stop-gap measure to allow “emergency” construction of a single 14-mile segment of fence near San Diego, but it was then used repeatedly to steamroll other federal agencies and ram through construction of fence segments in such sensitive areas as the San Pedro Riparian National Conservation Area and the Cabeza Prieta National Wildlife Refuge in Arizona. On April 1, 2008 Sec. Chertoff finally invoked a blanket waiver for all fence construction occurring anywhere along the 2000 miles of U.S.-Mexico border. The waiver allows DHS to circumvent the requirements of laws such as NEPA, which requires federal agencies to consider the cumulative effects of their actions on the human and natural environment. Will the fence work? What will the likely damages be to border communities and the environment? What is the true cost-benefit of this policy? These questions can now be ignored as a result of the Real ID waiver, and the answers suppressed until it is too late to rationally address them.