Homeland chief to 'waive all laws'?

Opposition to a homeland-security bill brought to the floor of Congress yesterday largely has centered on fears it would lead to a national ID, but some critics point to an overlooked section that apparently gives the White House sweeping powers to suspend laws for the purpose of protecting U.S. borders.

Section 102 of the REAL ID Act of 2005 seeks to expedite the building of a three-mile fence at the border near San Diego to staunch the flood of illegal aliens that travel through an area known as "smuggler's gulch."

Environmental laws have been the project's chief roadblock, but the bill's language appears to provide an unlimited scope, reading, "Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive, and shall waive, all laws such Secretary, in such Secretary's sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section."

Significantly, it also says courts are prohibited from reviewing the secretary's decision.

A spokesman for Rep. Duncan Hunter, R-Calif. -- a supporter of the bill whose district includes the border area -- said he could not comment on the scope of the measure's language. But he emphasized the need to construct the barrier as soon as possible to shut down a potential entry point by terrorists.

"There is an urgent priority to finish it," said Joe Kasper. "For several years, we've been going back and forth with the California Coastal Commission to finish up this border fence, with little success."

But Jim Harper, a former judiciary committee staffer who now serves as director of information policy studies for the libertarian Cato Institute in Washington, believes the way the bill is written does not limit the secretary's powers to removing environmental impediments.

"Taking judicial review away is quite dramatic," he told WND. "The secretary, under a strict reading, could waive any law and conceivably detain people, wiretap -- the list would go on and on of the laws that could be waived."

Harper said he objects to the bill being run through so quickly, which limits participation in the process to only the most aggressive players in Congress.

"It's really difficult to write legislation well," he said, "which is the reason we have a slow, deliberative process. Here we are not having that process, and the result is shoddily written legislation."

"But one thing we need to remember is, we are looking within the limits of the secretary of Homeland Security, what he deems necessary to finish fences and roads for the sake of national security," Kasper said.

To Americans who want assurance their civil liberties will not be eroded, he said: "The real assurance is in the safety [the bill] will provide, especially in relation to this border fence that will [block] terrorists trying to penetrate our border."

The bill's chief sponsor, Rep. James Sensenbrenner, R-Wisc., says the main purpose is to "prevent another 9-11 attack by disrupting terrorist travel."

Cosponsored with at least 115 House members, in addition to the fence, it aims to reform elements of the system manipulated by terrorists, requiring states to establish uniform rules for granting temporary driver's licenses to foreign visitors and tightening asylum procedures.

Jeff Deist, spokesman for Rep. Ron Paul -- a Texas Republican who regularly raises civil-liberties concerns during the formation of security related policy -- said his staff is getting a first look at the sections related to the fence, but "on face value, as written, it's exceedingly broad."

"The ostensible purpose is to allow the Homeland Security secretary to operate in that one area -- but 'all laws'? Would that include the Posse Comitatus Act?" he asked, referring to the measure passed in 1878 that bars the Army, and now the Air Force also, from executing laws except where expressly authorized by the Constitution or Congress.

Paul contends that despite Sensenbrenners' denials, the REAL ID Act moves the country toward creation of a national ID card.

A group called Defenders of Wildlife said it believes that although Sensenbrenner repeatedly has described H.R. 418 as limited only to the San Diego project, it likely would enable the secretary to waive all laws applying to the nearly 7,500 miles of border with Mexico and Canada.

Rodger Schlickeisen, president of the group, called the section "extreme and unnecessary."

Hunter's spokesman Kasper said he could not address the question of whether the law would apply beyond the San Diego area and referred WND to the House Judiciary Committee. But a staffer for the committee already had referred WND to Hunter's office for questions about that part of the bill.

Its like anything, too much of a good thing is bad, just like not enough. Power in and of itself is not a bad thing, but too much power centralized in too few locations is bad. One must always keep in mind that government is a fearful master, and is very much akin to fire.

Consider the plight of the homeowner: in the winter it gets mighty cold and so he brings fire into his house to warm his abode. However, uncontrolled fire in the middle of one's living or family room is downright dangerous (not merely destroying a homeowner's domicile but kill him outright). Therefore the wise homeowner builds a fireplace, to contain the power of the fire, a hearth to distribute the heat of the fire, and a chimney to provide channel the noxious byproducts of fire away from the homeowner.

And so it is with citizenry and its government. Governement exists by the mutual consent of those willing to be governed by it. Congress can make any law it chooses, the Supreme Court is the final arbitrator (from which there is no appeal), whether or not Congress is usurping power not delegated to it by the People (through the Constitution). The executive branch can only carry out the laws that it is delegated to enforce. Congress can make the executive and judicial branches as strong or weak according to its choosing (and at its peril also), within the confines of the document that give it authority to do so. And herein lies the beauty of that: Congress itself serves at the will of the people.

The biggest problem that I see in this regard is that the separate and several sovereign States are substantially weaker because their distinct representation has been abrogated through popular election of the Senate. This was never intended to be the case by the founders. This in and of itself is not necessarily a bad thing, if the State's interests with respect to any arbitrary Senator at election time was made clear to the electorate, and were allowed to vigorously campaign for specific Senatorial candidates.

The peoples voice is in the House, the States voice is in the Senate. But the peoples interest lies localy, and within their own district of residence. If the States legislating bodies elect Senators who they feel will promote the State's interests in Congress, then indirectly the people have a voice in the matter by electing to their respective state legislatures candidates whom they believe will send to Washington Senators who ultimately should be looking out for their State's best interests (and indirectly the interests of the State citizenry). As such, the State has a vested interest precisely in those two Senators will be representing the whole state in Congress (and not just pandering to the largest population center in the State).

With respect to legislation, Congress can pass a law in 48 hours if they really wanted to. If there was such an egregious abuse of power by either the judiciary or the executive branch to warrant it, there'd be such a hullaballoo from Congress' constituancy they'd move and they'd move quickly. Because there's nothing that motivates a Congresscritter more than the fear of being voted out of office.

In the grand scheme of things, its just like most parents behave with their children. If the kids act up, the parents instill Draconian measures like stren rebuke, pulling an ear, or hair, inflicting some pain with a slap or spanking, or curtailing of freedom and perhaps outright revokation of things. Over time, and if the children behave, the parents lighten up and the kids may end up with even more freedoms than before. On the other hand, if the kids show they can't be trusted about anything, the parents are going to respond harshly. And so I believe it is with our government. Ultimately, whatever happens is the peoples fault, and the government they get is the one they deserve.

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