Giving it all away . . .
Trying not to make Charlie’s head explode here, but . . .
When I first heard about the Biden administration’s border-wall construction directive, posted in the Federal Register by Department of Homeland Security secretary Alejandro Mayorkas, my first impulse, after a chuckle or two, was Cooke-ian: What gives the executive branch the power, sua sponte, to waive 26 laws?
Since I wasn’t familiar with the provision in question, I assumed this was more Obama-administration-style “pen and phone” imperial governance. Alas, the answer to my question about who had given away Congress’s authority to repeal or suspend federal statutes was . . . Congress.
I’ll have more to say in the weekend column, but it turns out that in 1996, when Bill Clinton was trying to get reelected and congressional Democrats like Senator Joe Biden were all about national security, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act, part of which deals with shoring up the southwest border with wall construction.
Under the IIRIRA’s §102(c), Congress endowed the attorney general with authority to waive “the Endangered Species Act of 1973 and the National Environmental Policy Act of 1969,” to the extent the AG, in her sole discretion, determined was “necessary to ensure expeditious construction of the barriers and roads” to be built. (This was eight years before the post-9/11 creation of the superfluous Department of Homeland Security, when the Justice Department was the principal executive domestic-security arm.)
The IIRIRA has been amended a few times in the ensuing 27 years, with the Article I branch delegating more sweeping power to the Article II branch. The relevant provision is now codified as a note appended to §1103 of the federal immigration laws (Title 8, U.S. Code). It now states:
Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads.
It’s worth observing that the people’s representatives, expressing the will of those to whom they answer, write laws demanding border security. But in doing so, the people’s representatives surrender their constitutional authority to the executive bureaucracy in Washington, for which border security is not a priority — in fact, in modern Democratic administrations, is anathema. Consequently, we don’t have border security.