WASHINGTON — The Bush administration's controversial fence along the Southwest border escaped a potentially devastating legal roadblock Monday as the Supreme Court rejected a constitutional challenge by environmental groups and more than a dozen members of Congress.
Without comment, the justices refused to consider pleas that Homeland Security Secretary Michael Chertoff had overstepped his constitutional authority by waiving laws and regulations in order to expedite construction of 670 miles of fencing along the U.S.-Mexico border.
Chertoff, invoking authority granted by the REAL ID Act of 2005, has waived more than 30 laws in the administration’s goal to complete the fencing by Dec. 31. Chertoff has told Congress that "it would be impossible" to meet the deadline without invoking the waivers.
The case in question before the high court focused on a 2-mile section of fencing in the San Pedro Riparian National Conservation Area near Naco, Ariz. A broader challenge to Chertoff’s waiver authority has been filed in a federal court in El Paso, Texas, but fence opponents acknowledged that the Supreme Court decision was a stunning setback in their efforts to block construction.
"It does send a surprising and disturbing message that the broadest waiver in American history, unprecedented in its scope, is not worthy of the court’s consideration," said Brian Segee, staff attorney for the Defenders of Wildlife. "The only thing that can stop the construction of this very destructive border wall is Congress."
Laura Keehner, the press secretary for the Department of Homeland Security, said the administration "is obviously pleased" with the court’s refusal to consider the case.
"The American people expect this department to enforce the rule of law at the border," she said. "Our efforts to do so sometimes result in lawsuits like this one, which the court rejected."
If the court had agreed to review the challenge, it wouldn't have heard arguments until its next term, which begins in October. Although the fence faces other lawsuits and objections from property owners in Texas, DHS officials have said repeatedly that they're on track to complete the fence before the Bush administration comes to an end in mid-January.
The Defenders of Wildlife and The Sierra Club filed their petition March 17, contending that the waivers granted under the REAL ID give "unbounded authority" to the executive branch and violate the Constitution’s separation of powers provision. Fourteen members of Congress, including eight committee chairmen, supported the petition in a friend-of-the-court brief, challenging Chertoff’s waiver authority to "skirt numerous federal laws" in pressing ahead with fence construction. Rep. Bennie Thompson, D-Miss., the chairman of the Committee on Homeland Security, charged that the waivers are a "direct challenge to Congress’ constitutional role."
Thompson said he was "extremely disappointed" with the court’s decision.
"This waiver will only prolong the department from addressing the real issue: their lack of a comprehensive border-security plan. Without a comprehensive plan, this fence is just another quick fix," he said.
Chertoff waived 19 laws for construction of fencing in the San Pedro Riparian National Conservation Area. A more extensive blanket waiver suspends compliance with up to 36 laws and covers 470 miles in all four states along the border. The waived laws include the National Environmental Policy Act, the Endangered Species Act, the Federal Water Pollution Control Act, the National Historic Preservation Act and the Eagle Protection Act.
Chertoff told Congress that the DHS would be unable to meet its goal "if we were to engage in each of the individual regulatory elements" that the statutes required. But he said that his agency was sensitive to the concerns of border communities and could complete the fence "without materially sacrificing" environmental and historical protections.