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
 |
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.
Significantly, it also says courts are prohibited from reviewing the secretary's decision.
That's interesting. Can the legislature legislatate the Judiciary out of the review process?
"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.
That's kind of freaky. While I agree with the intent of this law, these kinds of issues need to be amended first. Security isn't worth crap without liberty.
"That's interesting. Can the legislature legislatate the Judiciary out of the review process?"
I believe they can. They can even curtail the USSC.
I never knew that. They need to start putting that clause in all these referenda that activist Judges are overturning.
Equal and separate powers.
Yes, the Congress can determine what it allows the courts to rule upon.
It's just that we never see that done in practice.
Doesn't sound to me like a road block to illegal immigrants getting driver's licenses. This is the redress of that issue?
Ug... What else is in this sucker?
BTTT for later digestion
>>>
Environmental laws have been the project's chief roadblock
<<<
This must end NOW...
I AM for writing good legislation that serves the Pubic and can withstand challenge. I am NOT for using the 'slow, deliberative process' alluded to above as a pretext for delaying action on critical matters such as this. The problem has been evident for a number of years and I personally find it a step too far to believe that good, sound legislation to deal with it is not on the shelf awaiting Congressional action.
I always thought the courts had a Constitutional authority to review and rule on any aspect of law that was brought before them. The authority, I thought, came from the Constitution itself, not Congress.
So it begs the question, why don't we see this done more often? We have political wussies in office for the most part, I guess. They can pass a popular law, and when a court overturns it, they can point to the judge and absolve themselves of responsibility.
I have honestly never heard of this limitation on the courts before.
I bet you never dreamed growing up where crooked, power-tripping ICEHOLES ended up in life, did you?
Now, we have to be productive members of society AND battle these filthy critters that we allow to serve us...
It's certainly not the solution to illegal activity at the border. But it does fix the driver's license issue. The granting of those licenses are for documented individuals only.
The legality of those documents remains a state issue.
I always thought the courts had a Constitutional authority to review and rule on any aspect of law that was brought before them. The authority, I thought, came from the Constitution itself, not Congress.
As I understand it, you are technically correct. However Congress can prevent the federal courts from ever allowing a lawsuit over their laws to be brought before the judges.
I don't have the specific place in the Constitution, though, without a bit of research again.
It has been used before, but not for a while. Using it now would meet much resistance from citizens, though.
In fact, just recently, legislation was proposed to stip all inferiour courts of any jurisdiction pertaining to either flag burning or the Pledge of Allegiance (I forget which). However, that legislation didn't pass, and a great many here thought it was silly.
That notwithstanding, Congress could put the 9th Circuit Court on notice quite readily (if they so chose to) - and there aint nothing the Supreme Court could do about it.
Unless it was incorporated into a referendum.
Actually I posted a hypothesis in 2000, that stated this. It is my fear that by placing the wrong individual into office, that many are willing to back as much as Clinton's spinners did him no matter what, that we might actually destroy for all intents and purposes, a viable conservative movement in the United States.
Today we have people who call themselves conservatives but are not distressed that our nation's borders are wide open, that our Constition is ignored, that our federal budget is going up at a tremendous rate, that the DOE is actually getting more money than every before despite what it has done with it, that a one theater military readiness is preferable, that our nuclear stockpile be reduced by two thirds...
Oh well. This is one time when I wish like hell I had been wrong.
Well, if that is true, that is good.
Cool. Now THAT'S a nuclear option!
Not that this current group of sissies would ever do it...
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