Wednesday, Feb. 21, 2007 | There are many reasons why the public should oppose the construction of fences along the U.S.-Mexico border. Putting up such fences, including a three-layer fence along the border near San Diego, is bad policy.

Border fences don’t work very well at keeping people out; anyone hell-bent on getting to the other side will dig tunnels underneath or simply walk around the fence. Border fences are aesthetically ugly, destroying desert and mountain views. And border fences are morally repulsive, statuaries to xenophobia and inhumanity that cause death and other suffering.

But none of those reasons motivated recent litigation against the federal government to stop the remainder of the triple fence here in San Diego or the 37-mile fence planned for Yuma, Arizona. When activists first sued in 2004 to stop the triple fence, their reasons were entirely environmental: the fence’s construction will cause the extinction of several endangered species and have profound impacts on the health of the Tijuana River Valley and its residents. The federal government’s response to that lawsuit, however, has transformed an environmental fight into an all-out constitutional battle.

While the 2004 lawsuit was pending, Congress gave the secretary of homeland security the authority “to waive all legal requirements such secretary, in such secretary’s sole discretion, determines necessary to ensure expeditious construction” of border fences. The secretary promptly waived the statute on which the lawsuit was based (and several other environment laws). On behalf of the activists, I argued that the authority was an unconstitutional delegation of the law-making obligation ascribed solely to Congress under Article I of the U.S. Constitution (making the law entails un-making the law, according to the Supreme Court). Since the lawsuit was based solely on the National Environmental Policy Act, and because Congress had previously consented to the waiver of NEPA for the fence, the judge concluded that the secretary’s waiver of NEPA was consistent with what Congress itself had done previously and thus did not offend the Constitution. Read the judge’s decision here.

Emboldened by that ruling, the Secretary of Homeland Security last month waived several environmental, historic-preservation, and military land-use laws for the 37-mile fence near Yuma. The problem with these waivers is that the secretary of homeland security gets to pick and choose which laws the federal government will and will not follow. You and I do not have the same luxury in our lives and for a very good reason: Nobody should be above the law.

Based on this fundamental principle of constitutional governance, the new lawsuit (filed last week) challenges the federal government’s attempt to evade more than a dozen federal laws (other than NEPA and the Endangered Species Act) based on statutory cherry-picking by the secretary of homeland security.

If Congress believes that certain laws should not apply to the construction of border fences, then Congress should amend the laws accordingly. That’s what the members of Congress get paid to do, and we hold them accountable for their actions at the ballot box. But they must not be allowed to delegate their law-making obligation to an unelected, unaccountable political appointee in the executive branch. (Significantly, not even the president — the only elected official in the executive branch and the secretary of homeland security’s boss — has the authority to tell the secretary which laws to waive.)

Apart from offending the Constitution, letting the secretary of homeland security waive laws willy-nilly has the potential for other horrible consequences. What’s to stop the secretary from waiving the laws requiring minimum wages for those who work on the fence, or the laws requiring employers to provide the safest possible work environment, or the laws requiring open, competitive bidding on government contracts, or the laws prohibiting dishonesty in government contracting, or even the laws protecting whistle-blowers who expose wrongdoing by government officials and contractors? The role of Congress is to balance all the competing interests and considerations and then decide what rules everyone must follow; that’s what it means to make policy. The executive branch’s job is to enforce the rules; that’s what it means to be an executive. The separate-of-powers doctrine prohibits the one who enforces the law from making the law in the first place, thereby protecting citizens from tyranny.

So the fight over border fences is no longer merely about protecting the environment. It’s now, first and foremost, about defending the Constitution from attack by our political leaders. No matter what one thinks about the wisdom of building fences along the border, our first obligation in protecting the American way of life — even before protecting against outsiders — must be protecting our centuries-old constitutional form of government from internal attacks. By giving unbridled waiver authority to the secretary of homeland security, Congress mounted an attack on all of us.

Cory Briggs is an environmental lawyer, who recently filed a lawsuit, for the second time, to stop construction of the border fence. Agree with him? Disagree? Send a letter to the editor here.

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