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In passing the Iraq War Supplemental yesterday, the Senate also gave the Secretary of Homeland Security the power to waive any and all law in the course of building roads and barriers along the U.S. borders — without limit and with no checks and balances. The measure is part of the "REAL ID Act of 2005," the controversial immigration bill attached by the House as a rider to the Iraq war supplemental.
The consequence of this decision is that Congress has given one man a license to waive any law, for any reason or for no reason at all. Michael Chertoff, the Secretary of Homeland Security, now has the power to simply waive away laws that protect the environment, safeguard public health, ensure consumer and workplace safety, prevent unfair business practices, and ban discrimination — at his sole and unreviewable discretion.
There is too much at stake to grant any government officials the power to waive all law. Immediately at stake, of course, are current environmental protections in the vicinity of the borders, but even more is at stake. These fences and roads will not build themselves — they must be put in place by workers, who could lose all their workplace safety protections as well as their rights to collective bargaining or even overtime pay. This new power comes completely without limit; every law, from child labor to ethical contracting, can now be waived.
Congressional supporters of this measure would like us to believe that this measure means only that DHS can speed up completion of one small stretch of fence in the "Smuggler’s Gulch" area near San Diego. Nothing could be further from the truth. This measure is written so that Michael Chertoff will have unlimited authority to waive all law in the course of building roads and barriers and removing obstacles to the detection of illegal immigrants, and it applies anywhere in the vicinity of the borders. Earlier versions of this provision would have limited its scope just to environmental laws and just to Smuggler’s Gulch, but the version now passed by both houses of Congress applies everywhere along the borders and applies to all laws on the books.
We expect government officials to execute the law. No government agency should be above the laws that preserve America’s democracy. Congress has granted the Secretary of Homeland Security unbridled authority to act however he sees fit, without consequence, accountability, and any opportunity for judicial review.
ROBERT SHULL is Director of Regulatory Policy at OMB Watch.