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 Editorials | Opinions | June 2008 
On the Border: Divided Powers?
 Las Vegas Review-Journal
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| | Protesting the fence building erected along the U.S.-Mexico border (Ben Fredman/Dallas Morning News) | | |
More than decade ago, Congress authorized completion of a physical fence along heavily trafficked portions of the southwest border.
After a lawsuit stopped construction of a border fence in San Diego in the late 1990s, Congress duly responded by enacting laws in 1996 and again in 2005 that allow the Homeland Security Department to waive requirements of environmental laws and other regulations as necessary to facilitate completion of that fence.
As of June 13, some 331 miles of the multibillion-dollar fence - stretching from the Pacific to the Gulf of Mexico - had been finished. But even to get that much done, Homeland Security Secretary Michael Chertoff has had to waive more than 40 laws and regulations. Forty.
True to form, environmental groups have tried to delay or stop the project at every turn. There are currently two class-action lawsuits against property condemnation, and four District Court cases challenging the fence on environmental grounds.
One of those cases is an attempt by green extremists to block construction of a two-mile section of fence in the San Pedro Riparian National Conservation Area near Naco, Ariz. The section has already been built, actually. But environmentalists argue the barrier puts two already endangered species - the ocelot and the jaguarundi - in even more danger, because the fence would prevent the cats from swimming across the Rio Grande to mate.
The Supreme Court on Monday tossed that complaint, saying it won't stand in the way of Congress authorizing a waiver of some of its own laws to get the fence built.
That's a good thing. But it's important to note the real issue here is not the fence.
Rather, the question is whether we still have a government of divided powers, in which the legislative and the executive are free to adjust to circumstances to deal with what they see as a public crisis - or whether we live under the sole rule of supreme judges, who can and will move to block any policy they dislike, even on as thin a pretext as the alleged cross-border mating preferences of Mexican jaguarundi.
Imagine trying to duplicate the Manhattan Project to develop the atomic bomb in such a litigious climate. Imagine trying to build the interstate highway system.
This appeal for court intercession was not so much about a single project to guard the border. It asked whether the executive and legislative branches of government, acting together, still have the power to amend our laws to allow the completion of essentially any plan or program, lying well within the scope of their constitutionally delegated powers, to protect America from invasion or achieve any other reasonable public policy goal.
By turning down this appeal, the high court confirms that private parties may not use the courts - and fantastic interpretations of existing environmental laws - to block our elected officials from taking simple and obvious steps to enforce consensus, constitutional public policy. |
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