Authority to Waive...All Laws

[thuh Freak]

HR418, Title I, Section 102
`(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.'.
you can search for it at thomas.loc.gov. i'd post a link, but the link expires pretty quickly.

The bill has largley to do with terrorism, and also mentions sharing driving data between the states (a potential problem in itself). But the above quote is quite scary. Basically it says that the Secretary of HL Security can do whatever he wants. He has the power to suspend any law, and claim its related to "ensure expeditious construction of the barriers and roads", without any review whatsoever.

Seems quite ridiculous, doesn't it? I'm not sure just how much of a chance it has in the senate, but the fact that more than one person thought that bit up there was a good idea, that just scares me. I should hope that its unconstitutional, but I wonder if it would ever get to the supreme court. It says right in the text that the judicial branch isn't allowed to even question it. I'm a little hazy on the separation of powers mentioned in the constiution, and how effectively that part is written, but the text of this law seems to claim that he can't be challenged by anyone. It certainly seems to go against the intent of the separation of powers.

Your thoughts?

[SDW2001]

Originally posted by thuh Freak
you can search for it at thomas.loc.gov. i'd post a link, but the link expires pretty quickly.

The bill has largley to do with terrorism, and also mentions sharing driving data between the states (a potential problem in itself). But the above quote is quite scary. Basically it says that the Secretary of HL Security can do whatever he wants. He has the power to suspend any law, and claim its related to "ensure expeditious construction of the barriers and roads", without any review whatsoever.

Seems quite ridiculous, doesn't it? I'm not sure just how much of a chance it has in the senate, but the fact that more than one person thought that bit up there was a good idea, that just scares me. I should hope that its unconstitutional, but I wonder if it would ever get to the supreme court. It says right in the text that the judicial branch isn't allowed to even question it. I'm a little hazy on the separation of powers mentioned in the constiution, and how effectively that part is written, but the text of this law seems to claim that he can't be challenged by anyone. It certainly seems to go against the intent of the separation of powers.

Your thoughts?

Tell you what. I'll give you another chance. Go back and read and tell me again how it says he can ignore laws.

[Towel]

Originally posted by SDW2001
Tell you what. I'll give you another chance. Go back and read and tell me again how it says he can ignore laws. Erm, it does, explicitly. So did the original US Code, but this makes the scope of the laws he can ignore infinite, and explicitly denies judicial appeal.

Original US Code ("c" is the part superceded by the new law):Improvement of Barriers at Border

Section 102 (a)–(c) of div. C of Pub. L. 104–208 provided that:
“(a) In General.—The Attorney General, in consultation with the Commissioner of Immigration and Naturalization, shall take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.
“(b) Construction of Fencing and Road Improvements in the Border Area Near San Diego, California.—
“(1) In general.—In carrying out subsection (a), the Attorney General shall provide for the construction along the 14 miles of the international land border of the United States, starting at the Pacific Ocean and extending eastward, of second and third fences, in addition to the existing reinforced fence, and for roads between the fences.
“(2) Prompt acquisition of necessary easements.—The Attorney General, acting under the authority conferred in section 103(b) of the Immigration and Nationality Act [8 U.S.C. 1103 (b)] (as inserted by subsection (d)), shall promptly acquire such easements as may be necessary to carry out this subsection and shall commence construction of fences immediately following such acquisition (or conclusion of portions thereof).
“(3) Safety features.—The Attorney General, while constructing the additional fencing under this subsection, shall incorporate such safety features into the design of the fence system as are necessary to ensure the well-being of border patrol agents deployed within or in near proximity to the system.
“(4) Authorization of appropriations.—There are authorized to be appropriated to carry out this subsection not to exceed $12,000,000. Amounts appropriated under this paragraph are authorized to remain available until expended.
“(c) Waiver.—The provisions of the Endangered Species Act of 1973 [16 U.S.C. 1531 et seq.] and the National Environmental Policy Act of 1969 [42 U.S.C. 4321 et seq.] are waived to the extent the Attorney General determines necessary to ensure expeditious construction of the barriers and roads under this section [amending this section].”The intent doesn't seem different, but the scope is. No law at all can stand in the way of constructing barriers and roads. Sounds bad for property owners, not just endangered turtles. And this bit about trying to prevent judicial review is getting to be a bad habit for Congress. It almost seems like they're trying to sneak it in everywhere possible in order to provide some precedent for when it will really count - like for overturning Roe v. Wade legislatively, or undoing civil liberties protections. This is going to become the major Constitutional crisis of the 21st century.

[thuh Freak]

Originally posted by SDW2001
Tell you what. I'll give you another chance. Go back and read and tell me again how it says he can ignore laws.
It explicitly says it in the text I quoted (as Towel also mentioned). Maybe I'm just really high or something, because I took this:
...the Secretary of Homeland Security shall have the authority to waive, and shall waive, all laws...

to mean this:
...The secretary can ignore whatever laws he wants...{if he claims it relates to making highways safer from terrorists}

I'm curious, how did you interpret it? Did it not seem scary that its his sole option to "have the authroity to waive, and shall waive" laws he says relate to roads. The law is specifically written so that no one is allowed to question whether or not his waiving of a law relates to road construction (or that's how I read it).

[iPoster]

If you think that's bad, apparently you're not aware of FEMA...:wow: