Borderlands and citizens' trust in government shattered thanks to latest waivers by Bush administration; Chance for Congress to correct a mistake

(04/03/2008) -

WASHINGTON - On Thursday, April 3, the Bush administration’s Secretary of Homeland Security, Michael Chertoff, waived 36 laws, including those that ensure safe drinking water and clean air, protect wildlife and pristine borderlands, and conserve areas of cultural and archeological significance, to hasten construction of sections of border wall along the entire U.S./Mexico border. This blanket waiver is an extreme abuse of power – the Bush administration has gone too far.

Including this most recent instance, the waiver authority, granted by the REAL ID Act of 2005, has been exercised on four occasions to clear the way for wall construction. Thus far, two environmentally sensitive public lands have been trampled by the waivers. One waiver was used to remove vehicle barriers and replace them with a wall in the Barry M. Goldwater Range in Arizona; the other was used to build a border wall within the San Pedro Riparian National Conservation Area, also in Arizona. While previous waivers were limited to these specific locations, the Bush administration is now waiving laws across hundreds of miles in four states. This week’s action by Secretary Chertoff marks a new low, sweeping nearly 500 miles of proposed border wall construction out of the public eye and under one blanket waiver.

It is time for Congress to step in and put an end to this unprecedented abuse of power by rethinking and amending the section of REAL ID Act that grants one unelected official, the Secretary of Homeland Security, the authority to run roughshod over America's laws without question or repercussion.    

Some members of Congress, including Rep. Bennie Thompson (D-Miss.), chair of the House Homeland Security Committee, have already expressed their displeasure with the Bush administration’s abuse of the waiver authority:

  • Rep. Thompson said, “Today's waiver represents an extreme abuse of authority…Waiver authority should only be used as a last resort, not simply because the department has failed to get the job done through the normal process. It was meant to be an exception, not the rule.”
  • Rep. Raul Grijalva, (D-Ariz.) said, “It is a ridiculous claim that he [Secretary Chertoff] cannot protect the border without overturning the National Park Service Organic Act, the Safe Drinking Water Act, the Clean Air Act, the Antiquities Act, the Native American Graves Protection Act and 31 other laws…A waiver this broad and poorly conceived is not leadership; it is laziness.”
  • Rep. Hilda Solis (D-Calif.) said, “This isn't the first time the DHS [Department of Homeland Security] has used this authority, and each time it has resulted in increased frustration by all stakeholders.”

Defenders of Wildlife and Sierra Club have petitioned the U.S. Supreme Court to review the constitutionality of the Real ID Act provision that authorizes the Secretary of Homeland Security to waive any and all laws to expedite construction of the border wall. Defenders and Sierra Club argue that allowing an executive branch official to effectively repeal duly enacted laws violates fundamental separation of powers principles that are the foundation for our system of democratic governance. 

For more information, please contact Joe Vickless,, (202) 772-0237.

Learn more about what Defenders is doing to protect our borderlands.


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Joe Vickless, (202)772-0237