- Don’t Let Trump Skirt Law to Build Border Wall
- January 23, 2017 | Author: Robert J. Uram
- Law Firm: Sheppard, Mullin, Richter & Hampton LLP - San Francisco Office
Now that the Trump transition team has signaled to congressional Republicans that the president-elect wants to seek a budget appropriation to build a wall across the U.S.-Mexico border and have Mexico reimburse the cost later, it’s time to think about how he might do that. As president, Donald Trump may propose that Congress give him new authority to set aside laws to expedite construction. Congress set such an ill-advised precedent when it authorized wall construction more than a decade ago. The possibility of a similar request now should concern us all.
In 2005, Congress passed the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, which was signed into law by President George W. Bush. Hidden away in this enormous appropriations bill was a section of the REAL ID Act of 2005, which gave the secretary of Homeland Security the unlimited right to waive “all legal requirements” he or she deems necessary to expedite the installation of border controls in areas of high illegal entry.
That included environmental protections laws such as the National Environmental Policy Act, the Clean Water Act, the Clean Air Act, the Endangered Species Act and the National Historic Preservation Act. These are, perhaps, logical waivers to expedite construction of border facilities.
There is, however, nothing in the law that would have prevented setting aside other less germane laws. The secretary could have waived the Freedom of Information Act to allow the project to be built in secret - he or she is only limited by his or her imagination. Not only can federal laws be waived, but all state, local and “other laws” derived from or related to the subject of the federal laws also can be waived. All that was required was publication of the waiver in the Federal Register.
And, as it happened, the Department of Homeland Security exercised its waiver rights five times to build nearly 700 miles of border protection. Literally dozens of laws have been waived, including many environmental laws and the Native American Graves Protection and Repatriation Act, the American Indian Religious Freedom Act, and the Religious Freedom Restoration Act.
But that is only half the story.
Not only did Congress grant broad waiver authority, it also severely restricted judicial review. All claims must be filed within 60 days of the notice in the Federal Register. The only claim allowed is that the waiver violates the Constitution.
The combination of broad authority, no public participation and limited judicial review adds up to near dictatorial authority. It does not take much imagination to speculate that the generals and corporate billionaires that Trump is assembling for his Cabinet might rally around the idea of cutting “red tape” and seek similar authority.
The Obama administration wisely did not go down the waiver path in 2009 when it enacted the American Resource and Recovery Act, a law that was critically needed to help mitigate the economic impacts of the recession. The program funded more than $100 billion in infrastructure projects, many of which could proceed because they were “shovel ready” having already gone through environmental review.
Complying with the laws and regulations can be time consuming, expensive and frustrating. Yet waiving them ignores legitimate competing interests and risks unnecessary harm to the environment and to public health and safety. The REAL ID Act’s waiver authority and truncated judicial review threatened the rule of law. This precedent should not be repeated.