Posted on 02/09/2005 11:21:04 PM PST by ovrtaxt
ON CAPITOL HILL
Homeland chief
to 'waive all laws'?
Security provision in REAL ID Act
gives feds broad powers at border
© 2005 WorldNetDaily.com
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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."
Kasper acknowledged the language is broad.
"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 section of the proposed legislation reads:
SEC. 102. WAIVER OF LAWS NECESSARY FOR IMPROVEMENT OF BARRIERS AT BORDERS.Section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1103 note) is amended to read as follows:
(c) Waiver-
(1) IN GENERAL- 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.
(2) NO JUDICIAL REVIEW- Notwithstanding any other provision of law (statutory or nonstatutory), no court shall have jurisdiction--
(A) to hear any cause or claim arising from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to paragraph (1); or
(B) to order compensatory, declaratory, injunctive, equitable, or any other relief for damage alleged to arise from any such action or decision.
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.
The only good thing about politicians is that they're more desirable than mother-in-laws.
But only a little bit.
"Significantly, it also says courts are prohibited from reviewing the secretary's decision. "
The legislative branch is trying to tell the judicial branch that it cannot review the administrative branch.
Umm, since when does one branch of our government tell the other what it can review?
That's going way over the top with hysterics. The ability to waive laws is restricted solely "to ensure expeditious construction of the barriers and roads under this section" -- it's not a blank check to suspend laws about detention, wiretap, etc.
Just what are you trying to say? Are you tying to intimate that a blank check is like a "blank check"? OR what?
I think that's pretty dastardly (depriving those that have nowhere else to go to express their views any forum whatsoever to do so for free). That's just me, but I don't know...
"it's not a blank check to suspend laws about detention, wiretap, etc."
No the USA PATRIOT act did all that.
Your source? None of the branches was supposed to be more powerful or wield more power than another.
"Your source? None of the branches was supposed to be more powerful or wield more power than another."
Your statement is absurd on it's face.
In a nation of law, the men who make the law are more powerful than those they charge to enforce it.
Sadly, in 2005, the roles are 100% reversed with the courts being the most powerful and the Congress being the weakest.
To me, one or two strong State legislatures and 51 U.S. Senators would be enough to turn the tide dramatically back towards our foundation on many levels.
This means the tree-huggers can't block construction because some birds are sitting in a puddle and the land immediately gets deemed a "Wetland"
"The idea of the three separate branches was that each had specific powers and acted as checks and balances against each other. Read The Federalist Papers or any basic primer on the Constitution."
Right, where do we disagree?
All I said is that the Congress has more powers than the others. I did not say that the Congress' powers are unlimited or unbalanced.
Remember how things worked back in the late 1700's. The people only had direct control over the House of Reps.
What is so hard to accept about the premise that as direct involvement of the People declines, so to does the given powers? Why would the People cede power equally to those they can micromanage versus those who are untouchable?
Are you suggesting that judges appointed (essentially) for life were given equivalent powers and authorities than the members of the House who could be removed every other year?
That makes zero sense. But judging from your tagline, I think you haven't yet progressed beyond the "Democrats = bad, Republicans = good" mentality, so I'm not too sure why your opinion matters to me (go debate some other Bushbots).
What you said a few replies ago is:
Not even close. The Congress was originally meant to wield more power and responsibility than the other two, and the President more than the courts.
The notion of "coequal" is nonsense.
Then in your previous reply you re-stated it slightly by saying:
All I said is that the Congress has more powers than the others. I did not say that the Congress' powers are unlimited or unbalanced.
Remember how things worked back in the late 1700's. The people only had direct control over the House of Reps.
What is so hard to accept about the premise that as direct involvement of the People declines, so to [sic] does the given powers? Why would the People cede power equally to those they can micromanage versus those who are untouchable?
You simply don't know what you're talking about. First of all, "the Congress" is composed of two halves, each with different powers and responsibilities, with one originally intended to represent We the People, and the other the States. So, treating them as one entity is fine in a ninth-grade civics class, but for a thoughtful analysis of the system of checks and balances and the relative power of one branch versus another, it doesn't cut the mustard.
Secondly, the Contstitution was drafted by representatives of the states who trusted "the people" so little that they despised and feared democracy, and rightfully so. That is why our country was established as a federal republic, and that is why senators were originally elected by the state legislatures (i.e. to represent the states and keep the Senate above the passions of day-to-day politics, to which the House was envisioned to be susceptible).
The Executive Branch has powers denied to the Legislative Branch, and vice-versa. The Judiciary has the authority to interpret laws passed by Congress when a case reaches their docket, and to rule on cases arising from questions regarding the Constitution, federal laws, treaties, etc. Although the Judiciary is more quiet and behind-the-scenes than the other two branches, that does not mean that the Founding Fathers intended for them to be a minority branch. In fact, if you were well-read on the subject, you would know that Jefferson and others feared the power of the Judiciary more than the other two branches. Also, where do you get this notion that judges are "untouchable?" That is absurd! Judges can be, and have been, impeached, just like any other federal official.
Your assignment, since you are stating as fact something that was not written by the Founding Fathers, is to provide proof that their intention for the order of power was: 1) The Congress; 2) The Executive; and 3) The Judiciary. I want quotes from primary source documents, not some third-rate hack Internet scribbler.
PS - My tagline has nothing to do with the Republican Party, which is not mentioned implicitly or explicitly. My tagline is a simple statement of historical fact, which seems to elude you.
I guess in writing your tagline, you forgot Abraham Lincoln was a Republican.
"So, treating them as one entity is fine in a ninth-grade civics class, but for a thoughtful analysis of the system of checks and balances and the relative power of one branch versus another, it doesn't cut the mustard."
Of course, but I assumed we both understood the Congress is two working halves. (Not coequal either, as it so happens)
"The Executive Branch has powers denied to the Legislative Branch"
But none that are independent.
Sir, the answer to your "assignment" is the Constitution itself. I am sorry if you can't see that.
I'm sorry if I have given the impression that I think I am some sort of Constitutional scholar. I do not and I am not.
I read law and history all the time, and I'll be sure to let you know when I come across something OTHER than the original source which says what it says more clearly than it says itself.
It's a little known codicil that gives the Commander in Chief unlimited powers in times of national emergency. As of this moment, the Democrats are on double-secret probation.
Huh? My tagline mentions Democrats, Nazis, and the Soviets - how does Lincoln fit in any of those three categories? Even if Lincoln personally was responsible for every death in the Civil War, I am comparing Democrats to the other two leftist movements.
You point out that the Executive Branch has no powers independent of the Legislative, citing it as evidence of the latter's intended superiority of the former. But, the Legislative Branch has no power independent of the Executive, either. The president must ask for war; the president must sign legislation, etc. And if you want to bring up Congress' power to overturn a veto I'll counter with Executive Orders or interim appointments to fill posts without Congressional approval. However, as far as the main powers, each needs the other for completion.
And lastly, your assignment is incomplete. Where in the Constitution does it say that the Legislative Branch is superior to the Executive, and the Judiciary is subordinate to both? It doesn't. You can't be that sloppy and lazy when you make a statement as bold as you have and then I ask you to back it up with facts. I'll sink my teeth into the salient point like a rabid pit bull and you won't shake me loose!
"But, the Legislative Branch has no power independent of the Executive, either. The president must ask for war; the president must sign legislation, etc. And if you want to bring up Congress' power to overturn a veto I'll counter with Executive Orders or interim appointments to fill posts without Congressional approval. However, as far as the main powers, each needs the other for completion"
Where does the Constitution say the President asks for War?
Where does the Constitution talk about Executive Orders?
Look carefully at the words themselves, as well as the punctuation. The President only becomes commander in chief "only when called into actual service". Recess appointments are strictly temporary and only may happen when the vacancy happens "during the Recess of the Senate". That doesn't mean a position that has been vacant for monthes can just be filled with the Senate goes home for Christmas break.
Okay, on the tagline subthread, I probably jumped the gun, though I'm not sure I follow you anyhow. What is the point? Didn't the Soviet communists kill millions? How has the Democrat party come close to that?
Where does the Constitution say the President asks for War? Where does the Constitution talk about Executive Orders?
In the same section that says he is to appoint Secretaries of State, War, and Treasury. In other words, these are powers that evolved out of practicality. The Constitution was a skeletal framework designed to get the country established. Not all issues were addressed, and some were deliberately ignored as much as possible (slavery, national banks, etc.) in order to get it ratified with the intent that contentious issues were to be worked out later.
As far as asking Congress for war, the president is C-in-C, so the Senate cannot order him to go to war any more than he can declare war on another nation. Declaring war is a political action as opposed to waging war, which is a military action - they are two different things (and don't forget, most of our "wars" have been undeclared, such as the Civil War, Korea, Vietnam, the Gulf War, Iraq, and Afghanistan).
Look carefully at the words themselves, as well as the punctuation. The President only becomes commander in chief "only when called into actual service"...
Read Article II, Section 2 more closely, and you'll see that that refers to the state militias:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States...
Had they meant to include the Army and Navy as falling under his command when they are called into service of the U.S., it would have read something like "...of the Army, Navy, and the Militia of the several States, when called into the actual services..." The fact that Army and Navy are separated from Militia by a comma means that the "when called into the actual service" clause belongs with the Militia. Besides, 1) in whose service are the Army and Navy during times of peace? And are they not "in service to the U.S." even during times of peace, when they are busy patrolling the sea lanes, keeping hostile armies at bay with their sheer presence, etc.; and 2) why would every president be referred to as commander-in-chief when we haven't had a declared war since 1945, and not every president since then has seen an undeclared war? Who is the C-in-C during times of peace?
Recess appointments are strictly temporary and only may happen when the vacancy happens "during the Recess of the Senate". That doesn't mean a position that has been vacant for monthes can just be filled with the Senate goes home for Christmas break.
Again, read Article II, Section 2 more carefully:
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Recess appointment last through the next Senatorial session, they don't end when the Senate comes back from recess. Besides, if I remember correctly, some of Clinton's recess appointments were for vacancies that happened before the recess began, and there are probably many other examples. Since when has Congress and the president worried too much over the precise wording of the Constitution? Heck, 80% of what they spend isn't authorized by the document!
Okay, on the tagline subthread, I probably jumped the gun, though I'm not sure I follow you anyhow. What is the point? Didn't the Soviet communists kill millions? How has the Democrat party come close to that?
My tagline reads: "Democrats have helped kill more Americans than the Soviets and Nazis combined!" The Soviets killed a hundred million or more, but my tagline refers to Americans killed. Between the approximately 55,000 American deaths in Vietnam (which was a mass-murder committed by the Democrats, as opposed to a war in which the military was allowed a chance to win by the Johnson administration), and the 40,000,000-plus deaths that have taken place in abortion mills around the country since Roe v. Wade (you can counter by pointing out which USSC justices were GOP-picks, but the sheer magnitude of pro-death votes by Democrats v. GOP congressmen leaves this horror at the feet of the former much more than the latter), far outstrips the number of Americans killed by the Nazis and Soviets combined. The point of my tagline is to highlight an historical fact that shows the true evil, destructive, anti-American result of an evil, destructive, and anti-American political party.
But, let's get back to the original point of our debate: You said that the Founding Fathers intended for the Legislative Branch to be more powerful than the other two and for the Judiciary to be the weakest. I asked you to provide primary source documentation to prove that, and you have not. Simply saying 'the Constitution itself' is the evidence is not sufficient for supporting such a bold and radical re-interpretation of the Founders' intent.
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