So, how is this legal? (tinfoil hat thread)

[Koyaanisqatsi]

From http://arstechnica.com/news.ars/post/20050509-4886.html

Pertinent bits:

II. Waiver of Laws to Facilitate Barriers at Border44
Section 102 of the IIRIRA generally provides for construction and strengthening of barriers along U.S. land borders and specifically provides for 14 miles of barriers and roads along the border near San Diego, beginning at the Pacific Ocean and extending eastward. IIRIRA § 102(c) provides for a waiver of the Endangered Species Act of 1973 (ESA)45 and the National Environmental Policy Act of 1969 (NEPA)46 to the extent the Attorney General determines is necessary to ensure expeditious construction of barriers and roads...

H.R. 418 [the Real ID Act of 2005] would provide additional waiver authority over laws that might impede the expeditious construction of barriers and roads along the border. H.R. 418 would require the Secretary of Homeland Security to waive any and all laws that he determines necessary, in his sole discretion, to ensure the expeditious construction of barriers and roads under IIRIRA § 102...

Section 102 of H.R. 418 would amend the current provision to require the Secretary of Homeland Security to waive any law upon determining that a waiver is necessary for the expeditious construction of the border barriers. Additionally, it would prohibit judicial review of a waiver decision or action by the Secretary and bar judicially ordered compensation or injunction or other remedy for damages alleged to result from any such decision or action.

[chequita guevara]

How is it not legal?

[Koyaanisqatsi]

Read the article.

[Skanky Burns]

Summary?

[Koyaanisqatsi]

Originally posted by Skanky Burns
Summary?

Congress has crafted a completely unprecedented provision that guts the principle of judicial review by granting the DHS secretary complete and total immunity from the courts when it comes to the construction of "barriers and roads" in this one specific geographical region, and they've buried this provision inside a national ID card act which is itself attached to a large military appropriations bill that no Congressperson in their right mind would vote against (money for the troops and all that).

(which just passed 100-0).

[Whoha]

How is grabbing the land to build roads and walls any more illegal then siezing land from its owners with eminent domain in the first place?

[pchang]

Every law is legal until challenged.

[SpencerH]

So whats the problem? Tree-huggers will no longer be able to delay defending the borders (by building barriers to prevent unimpeded movement) by concerns about the habitat of the "warble-throated ****ehawk".

[Flubber]

Article seems to be a lot of inflated rhetoric. It appears that the construction of barriers is to be given prioty and will be exempted from certain acts or certain acts may be waived by a given official. This is a discretionary power and might be subject to judicial review, absent the mentioned provisions.

Nothing in a simple piece of legislation prevents judicial review of the constitutionality of a given measure

I don't see a big legal problem here. Whether or not you agree with this legislation, it seems pretty simple that if Congress has enacted legislation in the past, Congress has the powwer to amend or waive that legislation in ANY way that does not violate constitutional rights

[Japher]

We should import endangered animals into that area and hunt them!

[Dinner]

This barrier should have been built 50 years ago but every barrier is only as good as the people who guard it. Just ask the Chinese who built the Great Wall.

Incidentally since the southwestern border has something like 1 officer for every 100-120 miles we can still expect drug smugglers, gun runners, people smugglers, and everyone else who wants to cross the border to cross at ease.

[MichaeltheGreat]

Originally posted by SpencerH
So whats the problem? Tree-huggers will no longer be able to delay defending the borders (by building barriers to prevent unimpeded movement) by concerns about the habitat of the "warble-throated ****ehawk".

The problem isn't just "tree-huggers" although those ignorant of the scope and purpose of national environmental legislation like to use that label to bamboozle the public at large.

If you're a large landowner of industrial zoned land near the border, would you like to find out you can't develop your land (either absolutely, or in any economically feasible way) because a neighboring land owner has altered the drainage characteristics of your site area such that you are now in a flood plain?

Or how about a road realignment necessitated by that landowner's activity, such that your property loses major arterial road frontage which was part of the whole reason you invested in that ranch property years ago, knowing it was in the process of being rezoned industrial?

A huge portion of environmental processing and land development involves identifying and mitigating commercial impacts on neighboring land owners and users. Species and habitat protection is only a part of it. Even species and habitat protection can have commercial implications, either in affecting residential property values (greenbelt preserves between residential and commercial/industrial areas, or impacts on ecosystems affecting agriculture).


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As far as the legality goes, it's not unconstutional. Congress has the authority to limit the scope of judicial review (which act itself would be subject to judicial review to prevent Congress exceeding its constitutional authority by infringing separation of powers.)

Many Federal laws also have provisions (and NEPA is one) by which the Government, through some specified cognizant authority (in this case SECDHS), can make a determination and finding that national security or the effective operation of the Government require a specific exemption to provisions of that law. The determination and finding has to be made on a case by case basis, executed by the cognizant official or his authorized delegate, and recorded in the Federal Register.

That's just one of the fairly groovy things I learned while working for the Government.

[MichaeltheGreat]

Originally posted by Oerdin
This barrier should have been built 50 years ago but every barrier is only as good as the people who guard it. Just ask the Chinese who built the Great Wall.

There are barriers. And more barriers. And cameras which don't work installed by unqualified contractors at exorbitant cost in violation of acquisition regulations and statute. The barrier is tits on a boar pork barrel, and empire building. There are tunnels, etc., and a million ways of moving people and products through regular commerce, not to mention the ocean. It's more cost effective just to pour the money down a hole.

Incidentally since the southwestern border has something like 1 officer for every 100-120 miles we can still expect drug smugglers, gun runners, people smugglers, and everyone else who wants to cross the border to cross at ease.

I think we have more than 15 border patrol agents between here and Texas.

[Provost Harrison]

Looks like legalese to me...

[Zkribbler]

. Additionally, it would prohibit judicial review of a waiver decision or action by the Secretary and bar judicially ordered compensation or injunction or other remedy for damages alleged to result from any such decision or action.

This is a huge problem. It basically nullifies -- as for as this law -- Art III of the Constitution. Ever since Marberry v. Madison, the courts have been empowered to evaluate the constitutionality of the laws of this nation. This law seeks to deprive the Court of this, the most basic of all our protections.

For example, no judicially ordered compensation?? The "takings" clause is written into the constitution!!

The authors of this bill obviously have no notion of the concept of American liberty.