Published: 11.22.2007
Activists sue over Chertoff's border fence OK
BLAKE MORLOCK

Tucson Citizen
Environmentalists filed a lawsuit this week contesting the constitutionality of Congress giving Homeland Security chief Michael Chertoff the power to ignore laws interfering with building a border fence.
Defenders of Wildlife filed the suit Tuesday in U.S. District Court in Washington, D.C., claiming the Real ID Act yields too much authority to the secretary of homeland security.
Approved in 2005, Real ID gives the secretary the authority to void any law that would impede construction of a border fence. Defenders of Wildlife sued to force an environmental impact survey of plans to build the fence across the San Pedro River after Chertoff decided to void laws that could force the study.
The lawsuit claims giving him that authority violates separation of powers that make Congress the sole legislative body in the federal government. Chertoff has no authority under the Constitution to change law. Striking a law is the same as changing it, according to the lawsuit.
"While Congress itself certainly can repeal or amend standing law to expedite important public purposes," the suit alleges, "it cannot authorize the Executive Branch to repeal or amend the law in its own discretion."
Border security advocates have argued that building the wall is too important to be held up by complying with environmental rules.

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