Border Fence Challenge Rebuffed by Supreme Court

The justices decline to hear a petition from environmentalists, allowing the
Department of Homeland Security to continue construction.

by David G. Savage

June 24, 2008

WASHINGTON — The government's plan to build a 670-mile fence along the U.S.-Mexico border took another step forward Monday when the Supreme Court turned away a legal challenge from environmentalists.

The court's action clears the way for U.S. officials to press ahead with the project with little worry that judges will be able to stop it.

Three years ago, Congress gave Homeland Security Secretary Michael Chertoff an unusual power to "waive all legal requirements" that could stand in the way of building the fence.

These requirements included the nation's environmental protection laws. The same congressional action took away the authority of judges to review Chertoff's decisions.

Last year, after Chertoff waived at least 20 laws and regulations to complete a section of the fence in Arizona, two environmental groups sued. They said it was unconstitutional to give a Cabinet secretary such sweeping power.

But a federal judge rejected that claim. And on Monday the Supreme Court without comment declined to hear a petition submitted by Defenders of Wildlife and the Sierra Club.

The high court's refusal is not a ruling, and it doesn't mean the justices won't reconsider the issue. But for now, Chertoff and his department have the go-ahead to proceed with the fence. Nearly half the barrier has been built.

Oliver Bernstein, a spokesman for the Sierra Club in Austin, Texas, called the court's action "unfortunate."

"This decision leaves one man -- the secretary of the Homeland Security -- with the extraordinary power to ignore any and all of the laws designed to protect the American people, our lands and our natural resources," Bernstein said. "Today's decision will allow the DHS to continue to waive key health, environmental and safety laws that have protected communities, wildlife, archaeological, historic and cultural resources."

Fourteen House Democrats and a group of law professors had urged the Supreme Court to take the case. They agreed with the environmentalists that it was unprecedented to give a Cabinet member so much power while also stripping judges of the authority to review the legality of his actions.

Rep. Lamar Smith (R-Texas), a proponent of the law, called the court's action "a victory for the American people" and a milestone toward finishing the barrier.

"According to recent estimates, nearly half a million illegal immigrants cross the border annually," Smith said. "The court's refusal to hear the case . . . ensures that the DHS can carry out Congress' mandate to build a fence along the U.S.-Mexico border without legal restrictions or interference from environmentalists."

The project still faces legal challenges from landowners and tribal groups.

It is unclear whether judges have the authority to act on such claims.

© 2008 LA Times

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