April 16, 2008 – 10:10 p.m.
Democratic Chairmen Join Suit Against Use of Waivers for Border Fence
By Karoun Demirjian, CQ Staff

It was Congress, back in 2005, that granted the Homeland Security secretary the power to void federal laws in order to build a fence along the Southwest U.S. border. And Michael Chertoff hasn’t been shy about using the power.

In fact, he has issued several waivers of federal law, including two just this month, in order to keep construction moving.

Now, though, 14 House Democrats, led by Bennie Thompson , chair of the Homeland Security Committee, are arguing that what their Republican-led colleagues did three years ago was unconstitutional. The group is expected to file a friend of the court brief Thursday asking the Supreme Court to hear a pending appeal of a case originally filed by the Sierra Club and the Defenders of Wildlife. Judge Ellen S. Huvelle ruled against the environmental groups in U.S. District Court in Washington, D.C., in December 2007.

The lawmakers will argue in their brief that Congress overstepped its constitutional bounds when, effectively, it granted the secretary the power to repeal laws, according to a Democratic aide.

The representatives question the constitutionality of a broad waiver, which Congress authorized under Section 102 of the REAL ID Act in 2005, that issues no further restrictions or points of guidance to the executive when it hands over the power to indefinitely waive federal statutes that could hinder the progress of a border wall.

The brief says Chertoff exercised the waiver simply for convenience, and it urges the court to hear the suit because there is no other option for judicial review of use of the waiver. In its 2005 action, Congress actually forbade appellate courts from becoming involved, apparently making the Supreme Court the only option.

Among the lawmakers joining Thompson, D-Miss., in the filing are Rules Chairwoman Louise M. Slaughter , D-N.Y.; Education and Labor Chairman George Miller , D-Calif.; and Veterans’ Affairs Chairman Bob Filner , D-Calif.

The Defenders of Wildlife and the Sierra Club first brought the suit against the Bureau of Land Management, challenging the legality of border fence construction in the San Pedro Riparian National Conservation Area in Arizona.

Though they eventually lost the case, the environmental groups won a restraining order from Huvelle in October 2007 that temporarily stopped border wall construction and instructed DHS to investigate the local environmental impacts of the project.

Chertoff responded by using the waiver authority; in November, he circumvented the restraining order by waiving 19 federal statutes. He followed that up this month by authorizing two waivers — involving some 30 laws — in order to complete construction of the fence and other protective measures in California, Arizona, New Mexico and Texas.

‘I Feel an Urgency’
Several representatives, including most House members from border districts, decried the action as an abuse of power. Chertoff maintains that exercising the waiver is a necessary step to ensure that he is able to carry out the job that Congress gave him in formally mandating the construction of a border wall in the Secure Fence Act of 2006.

“Some lawyer would make an argument about [one of the laws], and we would then be in court for months arguing the process,â€