When the Supreme Court refused to stop Secretary of Homeland Security today from ignoring more than 30 mostly environmental laws pertaining to the construction of the border fence with Mexico, the Court, in effect, gave Michael Chertoff’s plenary powers to Chertoff’s ‘waiver authority’ over the border. By refusing to hear the case on the merits, the Court is also contributing to the Bush Administration’s growing legacy of eviscerating constitutional separation of powers and the rule of law. In these waning days of the worst presidency ever, this case is yet another example of John Yoo’s failed unitary executive thesis in action
But alas, because the fence deals only with immigration law, long the unwanted stepchild of administrative law; with immigrants the demonized other in american politics since 9/11; and since it deals with only a border fence in a desolate part of Arizona/Senora (San Pedro Riparian National Conservation near Naco), few people will spend much ink condemning this nondecision, but condemnation is what this act today deserves.
But according to Oliver Bernstein, Sierra Club spokesperson,
“This decisions leaves one man—the Secretary of the Department of 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.” (NYT David Stout)
When any one human power has such power, that person is a sovereign– a monarchical tyrant who stand outside the rule of law. Such exceptions to constitutional norms should not be countenanced by the Court, and certainly not by the American people. This is some, horrible legacy being left to the Bush successor and to the american people who will be forced to endure exceptions to constitutional norms tucked away in increasing numbers of of laws, regulations and policy.