The Border Fence Between The US and Mexico: Opinions?

D

Dave

Guest
WARNING, this is probably TL;DR but it's important.
according to the New York Times:
Power to Build Border Fence Is Above U.S. Law
By ADAM LIPTAK
Published: April 8, 2008

Securing the nation’s borders is so important, Congress says, that Michael Chertoff, the homeland security secretary, must have the power to ignore any laws that stand in the way of building a border fence. Any laws at all.



Last week, Mr. Chertoff issued waivers suspending more than 30 laws he said could interfere with “the expeditious construction of barriers” in Arizona, California, New Mexico and Texas. The list included laws protecting the environment, endangered species, migratory birds, the bald eagle, antiquities, farms, deserts, forests, Native American graves and religious freedom.

The secretary of homeland security was granted the power in 2005 to void any federal law that might interfere with fence building on the border. For good measure, Congress forbade the courts to second-guess the secretary’s determinations. So long as Mr. Chertoff is willing to say it is necessary to void a given law, his word is final.

The delegation of power to Mr. Chertoff is unprecedented, according to a report from the Congressional Research Service. It is also, if papers filed in the Supreme Court last month are correct, unconstitutional.

People can disagree about the urgency of border security and about whether it is more or less important than, say, the environment. Congress is entrusted with making those judgments, and here it has spoken clearly. In the process, it has also granted the executive branch more of the sort of unilateral power the Bush administration has so often claimed for itself.

No one doubts that Congress may repeal old laws through new legislation. But there is a difference between passing a law that overrides a previous one and tinkering with the structure of the Constitution itself. The extraordinary powers granted to Mr. Chertoff may test the limits of how much of its own authority Congress can cede to another branch of the government.

Mr. Chertoff explained the reasoning behind the law in a news release last week. “Criminal activity at the border,” he said, “does not stop for endless debate or protracted litigation.”

Mr. Chertoff has issued three similar waivers, and a challenge to the constitutionality of one of them has just reached the United States Supreme Court. If the court decides to hear the case, its decision will almost certainly apply to last week’s waivers as well.

The case was brought by two environmental groups, Defenders of Wildlife and the Sierra Club. They sued Mr. Chertoff last year over his decision to suspend 19 laws that might have interfered with the construction of a border fence in the San Pedro Riparian National Conservation Area in Arizona.

Congress, the groups said, had given Mr. Chertoff too much power.

“It is only happenchance that the secretary’s waiver in this case involved laws protecting the environment and historic resources,” the groups told Judge Ellen Segal Huvelle of Federal District Court in Washington. “He could equally have waived the requirements of the Fair Labor Relations Act to halt a strike, or the provisions of the Occupational Safety and Health Act in order to force workers to endure unsafe working conditions.”

(Happenchance? You don’t see that word every day, and certainly not in a court filing.)

The groups said Congress cannot hand over unbridled power to the executive branch even as it cuts the courts out of the picture. They relied mostly on a 1998 Supreme Court decision striking down the Line Item Veto Act, which had allowed the president to cancel parts of laws.

In December, Judge Huvelle rejected the challenge and allowed construction to proceed. She said she had no jurisdiction to decide whether Mr. Chertoff was correct in saying the waivers were necessary, and she ruled that the delegation of power to him was constitutional.

“The court concludes that it lacks the power to invalidate the waiver provision merely because of the unlimited number of statutes that could potentially be encompassed,” Judge Huvelle wrote.

A petition asking the Supreme Court to hear the case was filed three months later.

Did you notice the missing step? In addition to forbidding judges from second-guessing Mr. Chertoff’s decisions, Congress forbade federal appeals courts from becoming involved at all. After losing before Judge Huvelle, the groups’ only recourse is to hope the Supreme Court decides to hear their appeal.

In their petition, the environmental groups said the Supreme Court had never upheld a broad delegation of power like that given to Mr. Chertoff without the possibility of judicial review of executive branch determinations. Nor, they said, has any appeals court.

It is the combination of those two factors — the broad granting of power to the executive branch and cutting the judicial branch out of the process — that makes the 2005 law so pernicious, the groups say.

The government’s response is due next week. In a brief filed in the district court last year, Justice Department lawyers told Judge Huvelle that the urgency of border security must trump other interests. They added that Congress may delegate particularly broad powers in the areas of national security, foreign affairs and immigration because the Constitution gives the executive branch great authority in those areas.

The line-item veto decision does not apply, the government lawyers said, because Mr. Chertoff is not repealing laws for all purposes, just suspending them for his fences.

It is true, of course, that Congress gave up its powers here voluntarily. But Justice Anthony M. Kennedy had a response to that point in his concurrence in the line-item-veto case.

“It is no answer, of course, to say that Congress surrendered its authority by its own hand,” he wrote. “Abdication of responsibility is not part of the constitutional design.”

Justice Kennedy made a broader point, too, one perhaps more apt today than it was 10 years ago.

“Separation of powers was designed to implement a fundamental insight,” he wrote. “Concentration of power in the hands of a single branch is a threat to liberty.”
 

nogodsnomasters85

Not Stirred
Apparently, "Give us you're poor, huddled masses yearning to be free" has been officially changed to "f*** You".
 
D

Dave

Guest
Border fence case is rejected Supreme Court allows construction to proceed

By Leslie Berestein
UNION-TRIBUNE STAFF WRITER

June 24, 2008

Overview
Background: After environmental concerns halted construction of fencing along the U.S.-Mexico border in San Diego County, Congress passed legislation in 2005 allowing the Department of Homeland Security to waive laws and litigation that would block the work. The federal government is rushing to finish 670 miles of border fencing by the end of the year, and waivers have cleared the way for fence construction in all four border states.

What's changing: The U.S. Supreme Court declined yesterday to take up an Arizona case brought by environmental groups that could have slowed or halted the multibillion-dollar fence project.

The future: Although the court's inaction allows the federal government to continue to invoke waivers, the fence faces two class-action suits against property condemnation and four other cases challenging environmental actions.

The U.S. Supreme Court has refused to hear a case that challenged the Homeland Security Department's right to waive environmental laws and litigation to build a fence along the U.S.-Mexico border.

The decision, made without comment, seemingly removes a potential hurdle to construction of a $48.6 million fencing project across a canyon known as Smuggler's Gulch, west of the San Ysidro port of entry.

“It's over. They're going to build a wall,” said attorney Cory Briggs, who in 2004 filed suit to stop the project on behalf of the Sierra Club, San Diego Audubon Society, the Southwest Wetlands Interpretive Association and other local environmental groups.

The appeal, which grew out of a challenge to fence construction in Arizona, was filed by the Defenders of Wildlife and the Sierra Club. It challenged the constitutionality of Homeland Security's authority to waive laws and litigation standing in the way of border fence construction.

The waiver authority, granted by Congress in 2005, was first used that year in San Diego to dismiss legal and environmental challenges to the Smuggler's Gulch fence.

Yesterday's news was met with enthusiasm by longtime supporters of border fencing, including Rep. Duncan Hunter, R-Alpine, who pushed to add the waiver authority to the Real ID Act of 2005.

“This has been enormously important to him,” said Joe Kasper, Hunter's press secretary. “He has been an advocate for border fencing long before it was part of the national debate.”

Heavy construction on Smuggler's Gulch, which would include cutting soil from nearby hills to fill in the canyon, is set to begin next month, according to U.S. Customs and Border Protection.

As the federal government rushes to have 670 miles of border fence in place by the end of the year as part of the 2005 Secure Border Initiative, Homeland Security has used its waiver authority elsewhere on the southern border, starting last year in Arizona.

On April 1, two additional waivers cleared the way for construction in California, Arizona, New Mexico and Texas, with one waiver encompassing 470 miles.

So far, Homeland Security Secretary Michael Chertoff has waived more than 40 laws and regulations. As of June 13, 331 miles of fencing had been built, with about as much still to go.

The case being appealed involved a two-mile section of fence in the San Pedro Riparian National Conservation Area near Naco, Ariz. Environmentalists have said the fence puts endangered species such as two types of wild cats – the ocelot and the jaguarundi – in even more danger because they would be prevented from swimming across the Rio Grande to mate.

The waivers have prompted other legal challenges, including one lawsuit filed this month in Texas by the county of El Paso and several other plaintiffs.

Although yesterday marked the end of the line for the Arizona case, said Defenders of Wildlife attorney Brian Segee, there is still a chance that another legal challenge may prevail. The Texas case, which Segee said has yet to be heard, represents not only local governments but also tribal and environmental interests, and covers a much larger area than the Arizona litigation did.

Mike McCoy of the wetlands association, one of the plaintiffs in the 2004 San Diego case dismissed after the waiver authority was granted, said he had spoken with Defenders of Wildlife about the decision.

“It doesn't surprise me any,” said McCoy, a longtime champion of preserving the Tijuana River estuary. “We were thinking (in 2005) that maybe we'd carry it all the way, but that would just be a waste of money.”

Once built, the 3.5-mile stretch of fence in Smuggler's Gulch, along with two smaller sections, will complete 14 miles of contiguous secondary fencing stretching from the ocean.

According to the federal government, an earthen berm will be built across the canyon to support a 15-foot secondary steel-mesh fence and all-weather patrol roads. This will require filling the canyon with at least 2 million cubic tons of dirt.

The concern among environmentalists is that among other things, sediment from the earth-moving operation would irreparably damage the estuary.

Some of the 2004 plaintiffs, including McCoy, have proposed an alternative construction plan that would not fill the canyon. It calls for replacing the aging fence on the canyon floor with a sturdier one, hiring additional Border Patrol agents and adding improved sensor technology. However, there haven't been any takers.

“We're hoping for wisdom,” said Jim Peugh of the San Diego Audubon Society, another original plaintiff. “But the chances don't look that good.”
 
D

Dave

Guest
Some of the contractors were caught using illegal labor already, in an ironic twist.

I don't understand the rush to complete this fence by the end of the year. Is it because of the elections? The plan makes no sense because we're not keeping our terrorists with this wall. All they need is a plane, a boat, or to start in Canada.

The US is allowing itself to change beyond recognition because of the threat of terror attacks.

Then we have things like this:

McCain aide regrets terror claim

A top adviser to John McCain has apologised for saying a terrorist strike on the US would benefit the Republican presidential candidate.

Charlie Black said he regretted the remarks to Forbes magazine in which he said a new attack on US soil would be a "big advantage" for Senator McCain.

Mr McCain said he found it hard to believe Mr Black had made such comments with which he "strenuously disagreed".

Democrat Barack Obama's campaign said Mr Black's comments were a "disgrace".

Followers of Mr McCain - a former US Navy pilot and Vietnam prisoner-of-war who has travelled the world while serving in the Senate - say his extensive grounding in foreign affairs gives him an advantage over the less experienced Mr Obama.

Thus, they argue, he benefits any time national security matters are the news of the day.

But questioned about Mr Black's comments, Mr McCain told reporters: "I cannot imagine why he would say it. It's not true.

"I've worked tirelessly since 9/11 to prevent another attack on the United States of America. My record is very clear."

Mr Black said: "I deeply regret the comments. They were inappropriate.

"I recognise that John McCain has devoted his entire adult life to protecting his country and placing its security before every other consideration."

Mr Obama's spokesman, Bill Burton, said: "The fact that John McCain's top adviser says that a terrorist attack on American soil would be a 'big advantage' for their political campaign is a complete disgrace, and is exactly the kind of politics that needs to change."
 

Worm

Taste the diffidence
Thanks for posting, Dave.

All this is of course very frightening but it just confirms the larger trend: after 9/11 the U.S. Constitution has gone out the window in ways we probably haven't even guessed. A big terror strike would knock over the house of cards that is the old America pretty quickly. In the new America the question of a fence will be the least of our worries.
 
D

Dave

Guest
Thanks for posting, Dave.

All this is of course very frightening but it just confirms the larger trend: after 9/11 the U.S. Constitution has gone out the window in ways we probably haven't even guessed. A big terror strike would knock over the house of cards that is the old America pretty quickly. In the new America the question of a fence will be the least of our worries.

That's true because we would never get anywhere near the fence. By the way, some are calling it a wall. I don't know which is technically correct.

The reason I think it's important is because we are not yet living in this "new America" and it will be harder to resist it later. While a lot of things happen in secret, they actually rely on our cooperation for a lot of the changes they are making.

The McCain problem, the statement by "Mr. Black", and the resulting denials and distancing that followed, show that this is how these people think. Bush benefited greatly from 9/11 and McCain's people feel he is in a similar position to benefit. It's almost like they want it, and that's why they had to deny it.

The famous Hillary Clinton ad, "who do you want in the white house at 3 am when the shit hits the fan?" was playing on the same fears, but Hillary will at least just get right out there and say "Be afraid. Be very afraid."

Anyway, this is probably paranoid, and I've never wanted to leave this country anyway, but with all of the travel restrictions for citizens who have no criminal convictions, the Real ID card, and the spying without warrants, and so on, I start to feel like this fence is for us, too, at least symbolically.
 

nogodsnomasters85

Not Stirred
That's true because we would never get anywhere near the fence. By the way, some are calling it a wall. I don't know which is technically correct.
The reason I think it's important is because we are not yet living in this "new America" and it will be harder to resist it later. While a lot of things happen in secret, they actually rely on our cooperation for a lot of the changes they are making.
The McCain problem, the statement by "Mr. Black", and the resulting denials and distancing that followed, show that this is how these people think. Bush benefited greatly from 9/11 and McCain's people feel he is in a similar position to benefit. It's almost like they want it, and that's why they had to deny it.
The famous Hillary Clinton ad, "who do you want in the white house at 3 am when the shit hits the fan?" was playing on the same fears, but Hillary will at least just get right out there and say "Be afraid. Be very afraid."
Anyway, this is probably paranoid, and I've never wanted to leave this country anyway, but with all of the travel restrictions for citizens who have no criminal convictions, the Real ID card, and the spying without warrants, and so on, I start to feel like this fence is for us, too, at least symbolically.

You're preaching to the choir.
 

iamkali62

New Member
How will it be funded?

If only there was a readily-available source of cheap labor to build it...

Ha...clever. I see the illegal aliens standing in front of the bank, looking for work. I have been to Tijuana and San Ysidro, and trust me, NO fence is going to make any difference. What an idiot.
 

SNS22

Not Dead Yet
Personally, I want a fence between the US and Canada to keep all the deprived Morrissey fans out of here. :p
 

iamkali62

New Member
How will it be funded?

If only there was a readily-available source of cheap labor to build it...

Border fence case is rejected Supreme Court allows construction to proceed

By Leslie Berestein
UNION-TRIBUNE STAFF WRITER

June 24, 2008

Overview
Background: After environmental concerns halted construction of fencing along the U.S.-Mexico border in San Diego County, Congress passed legislation in 2005 allowing the Department of Homeland Security to waive laws and litigation that would block the work. The federal government is rushing to finish 670 miles of border fencing by the end of the year, and waivers have cleared the way for fence construction in all four border states.

What's changing: The U.S. Supreme Court declined yesterday to take up an Arizona case brought by environmental groups that could have slowed or halted the multibillion-dollar fence project.

The future: Although the court's inaction allows the federal government to continue to invoke waivers, the fence faces two class-action suits against property condemnation and four other cases challenging environmental actions.

The U.S. Supreme Court has refused to hear a case that challenged the Homeland Security Department's right to waive environmental laws and litigation to build a fence along the U.S.-Mexico border.

The decision, made without comment, seemingly removes a potential hurdle to construction of a $48.6 million fencing project across a canyon known as Smuggler's Gulch, west of the San Ysidro port of entry.

“It's over. They're going to build a wall,” said attorney Cory Briggs, who in 2004 filed suit to stop the project on behalf of the Sierra Club, San Diego Audubon Society, the Southwest Wetlands Interpretive Association and other local environmental groups.

The appeal, which grew out of a challenge to fence construction in Arizona, was filed by the Defenders of Wildlife and the Sierra Club. It challenged the constitutionality of Homeland Security's authority to waive laws and litigation standing in the way of border fence construction.

The waiver authority, granted by Congress in 2005, was first used that year in San Diego to dismiss legal and environmental challenges to the Smuggler's Gulch fence.

Yesterday's news was met with enthusiasm by longtime supporters of border fencing, including Rep. Duncan Hunter, R-Alpine, who pushed to add the waiver authority to the Real ID Act of 2005.

“This has been enormously important to him,” said Joe Kasper, Hunter's press secretary. “He has been an advocate for border fencing long before it was part of the national debate.”

Heavy construction on Smuggler's Gulch, which would include cutting soil from nearby hills to fill in the canyon, is set to begin next month, according to U.S. Customs and Border Protection.

As the federal government rushes to have 670 miles of border fence in place by the end of the year as part of the 2005 Secure Border Initiative, Homeland Security has used its waiver authority elsewhere on the southern border, starting last year in Arizona.

On April 1, two additional waivers cleared the way for construction in California, Arizona, New Mexico and Texas, with one waiver encompassing 470 miles.

So far, Homeland Security Secretary Michael Chertoff has waived more than 40 laws and regulations. As of June 13, 331 miles of fencing had been built, with about as much still to go.

The case being appealed involved a two-mile section of fence in the San Pedro Riparian National Conservation Area near Naco, Ariz. Environmentalists have said the fence puts endangered species such as two types of wild cats – the ocelot and the jaguarundi – in even more danger because they would be prevented from swimming across the Rio Grande to mate.

The waivers have prompted other legal challenges, including one lawsuit filed this month in Texas by the county of El Paso and several other plaintiffs.

Although yesterday marked the end of the line for the Arizona case, said Defenders of Wildlife attorney Brian Segee, there is still a chance that another legal challenge may prevail. The Texas case, which Segee said has yet to be heard, represents not only local governments but also tribal and environmental interests, and covers a much larger area than the Arizona litigation did.

Mike McCoy of the wetlands association, one of the plaintiffs in the 2004 San Diego case dismissed after the waiver authority was granted, said he had spoken with Defenders of Wildlife about the decision.

“It doesn't surprise me any,” said McCoy, a longtime champion of preserving the Tijuana River estuary. “We were thinking (in 2005) that maybe we'd carry it all the way, but that would just be a waste of money.”

Once built, the 3.5-mile stretch of fence in Smuggler's Gulch, along with two smaller sections, will complete 14 miles of contiguous secondary fencing stretching from the ocean.

According to the federal government, an earthen berm will be built across the canyon to support a 15-foot secondary steel-mesh fence and all-weather patrol roads. This will require filling the canyon with at least 2 million cubic tons of dirt.

The concern among environmentalists is that among other things, sediment from the earth-moving operation would irreparably damage the estuary.

Some of the 2004 plaintiffs, including McCoy, have proposed an alternative construction plan that would not fill the canyon. It calls for replacing the aging fence on the canyon floor with a sturdier one, hiring additional Border Patrol agents and adding improved sensor technology. However, there haven't been any takers.

“We're hoping for wisdom,” said Jim Peugh of the San Diego Audubon Society, another original plaintiff. “But the chances don't look that good.”

Duncan Hunter is an idiot par excellance. NO fence is going to work. It's too late. No one cares. Well, some people care, but people are getting very apathetic about the whole issue. Imagine how many billions of dollars will go into this! Idiots! Also, the Union-Tribune is highly conservative.
 
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