Supreme Court OK's Border Fence

By Jon Feere on June 23, 2008

The Supreme Court today rejected a plea by environmental groups to prevent Homeland Security from constructing part of the pending U.S.-Mexico border fence. The White House had made use of a statutory provision in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (provided via amendment by 2005’s REAL ID Act) which reads, in part: “[n]otwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads.” In other words, Congress gave the White House direct authority to waive various laws, such as environmental protection statutes, when securing our borders.

The environmentalists unsuccessfully argued that the statute is an unconstitutional delegation of legislative power. Their brief is available, here. (PDF)

The brief for the government, which pointed out that such delegation is quite common, is available, here. (PDF)

Now that this hurdle has been cleared, DHS Secretary Michael Chertoff has one less reason to drag his feet in building the border fence.

One would think that the head of the House of Representatives Committee on Homeland Security would be happy with the decision -- but he’s not: Chairman Bennie Thompson (D-Miss.) – who along with 13 other House Democrats filed a brief in support of the environmentalists – is “extremely disappointed” by the Court’s decision. He argues: “This waiver will only prolong the department from addressing the real issue: their lack of a comprehensive border security plan.” Translation: Thompson wants amnesty – a “solution” to illegal immigration which has led directly to terrorist attacks and more illegal immigration.

While the Court’s decision today is a small boost for border enforcement, it’s important to remember that the border is only one component of the best policy for ending illegal immigration: attrition through enforcement.