Exempting Dept of Homeland Security from Judicial oversight?
http://arstechnica.com/news.ars/post/20050509-4886.html
The big news of the past two days is the impending passage of the Real ID act. I'm going to spare you any kind of detailed analysis of the ID and database aspects of this bill for two reasons a) they're already covered very well in sources I'll list below, and b) this bill contains a truly bizarre provision that caused a run on tinfoil hats in the blogosphere when it was first introduced, but has now dropped out of all coverage of this bill that I've read so far. (You'd think a clause that uses an obscure and never-before-invoked part of the Constitution to place the secretary of DHS above both the Supreme Court and the Constitution itself would get more coverage, but more on that in a moment.)
First up, the database and "national ID" portion of the bill. Bill Scannell of JetBlue privacy scandal boycott fame has launched a new site, where you can go and get last-minute information on how to fight a bill that goes up for a Senate vote tomorrow. Realistically, there's not a lot we can do at this late hour, so just hit Bill's site if you're on a manic swing and you need to come down off of it. Also of interest is this Techdirt post, which contains a good, brief summary of what's wrong with the bill, along with a link to this article on the bill's worrisome implications for ID theft. Finally, there's the EFF homepage, where you can read up on the bill and email your senator about it. While you're at it, you'll also want to check out this summary and analysis of the bill, courtesy of the Congressional Research Service.
Now to the fun stuff. If you click on the last link above (the summary and analysis PDF), and you read through the document, you'll see that the bill contains the following, seemingly harmless provision (emphasis added):
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.
To understand what this business about waiver of judicial review means, you have to know two things. First, you have to know a bit about the contested history of judicial review. Depending on who you talk to, the Federal judiciary's power to overturn a law or to put a stop to an official act of government on the grounds that the law or act is unconstitutional and/or a violation of basic rights is either a core constitutional principle that ensures the rule of law and protects the rights of minorities from the "tyranny of the masses" (e.g. from Brown v. the Board of Education to Roe v. Wade) , or it's an affront to democratic governance and the chief enabler of left-wing "judicial activism."
The concept of judicial review is actually the very thing that's at stake in the current controversy over the Senate filibuster rules and Bush's judicial nominees, and it has been a major bone of contention in the culture wars for the past few decades. One side says that judicial review allowed five unelected officials in black robes to strip prayer from public schools, while the other side says it allowed the judicial branch to do its job by enforcing the constitutionally mandated principle of separation of church and state; Or, one side says that judicial review could potentially enable five unelected officials in black robes to force the states to recognize gay marriage, while the other side says that it will allow the judicial branch to enforce the "full faith and credit" clause of the Constitution that mandates that contracts made in one state (like, say, marriage contracts made in Massachusetts) be recognized in all fifty states; and so on and so forth.
So if judicial review is the basic mechanism that enables the Federal court system--from the Supreme Court on down--to rule on the constitutionality of laws and government actions, then how could it be possible for Congress to pass a law that includes a "waiver" of judicial review for the law in question? In other words, if Congress could somehow waive judicial review for a law, then the principle of judicial review would be completely gutted because they could just waive judicial review for any law they wanted to, even if that law is blatantly unconstitutional or it violates basic human rights. Surely this isn't possible?
Opponents of the concept of judicial review appeal to an obscure and cryptic article of the Constitution, the (in)famous Article 3, Section 2 (A3S2 for short), which states:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
That last sentence is the kicker, because it looks for all the world like language that would enable Congress to wave a magic A3S2 wand over any piece of legislation no matter how outrageous and have it be completely exempt from review by the courts. The implications for the system of checks and balances if Congress actually invokes this provision are about as profound as it gets, which is why no Congress in American history has ever opted to open that particular can of worms... until now.
You can read more on the tinfoil hat implications of this here if you're interested, but I'll sum it up for you: 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).
Obviously, if this passes, it'll set a precedent. First, some obscure border region outside of San Diego, and then on to bigger and better things? As the present bill stands, if DHS built a road through an endangered wetland and committed four murders in the process, nobody could take the government to court over it. Is this the kind of unchecked power that we want Congress to have? The sky's the limit, once the A3S2 can of worms is opened tomorrow.
As a postscript, the icing on the cake of this whole thing has to be the way that the Republican sponsors of the bill actually voted down a proposed provision in the national ID card part of the law that would prevent the government from using the Real ID database as a national database of gun owners. (A national database of gun owners is a longtime nightmare scenario of the NRA. As a lapsed NRA member and lifelong hunter, I can't count the number of times I've seen a national gun registration database invoked as one of the first signs of the black helicopter apocalypse.)
