Court rebuffs opposition to border fence

The Supreme Court declined to hear a petition submitted by Defenders of Wildlife and the Sierra Club.

Los Angeles Times

WASHINGTON — The government’s plan to build a 670-mile fence along the U.S.-Mexico border took another step forward Monday when the U.S. Supreme Court turned away a legal challenge from environmentalists.

The court’s action clears the way for U.S. officials to press ahead with the project with little fear that judges will be able to halt the effort.

Three years ago, Congress gave Homeland Security Secretary Michael Chertoff the power to “waive all legal requirements” that could stand in the way of building the barrier. These requirements included the nation’s environmental protection laws.

The same congressional action also took away the authority of judges to review Chertoff’s decisions.

In 2007, after Chertoff waived at least 20 laws and regulations to complete a section of the fence in Arizona, two environmental groups sued. They asserted that giving a Cabinet secretary such sweeping power was unconstitutional.

But a federal judge rejected that claim. And Monday the Supreme Court without comment declined to hear a petition submitted by Defenders of Wildlife and the Sierra Club.

The court’s refusal is not a ruling, and it does not foreclose the possibility that the justices might reconsider the issue. But for now, Chertoff and his department have the go-ahead to proceed with the fence. Nearly half of it is in place.

Oliver Bernstein, a spokesman for the Sierra Club in Austin, Texas, called the court’s action “unfortunate.”

“This decision leaves one man — the secretary of the Homeland Security — with the extraordinary power to ignore any and all of the laws designed to protect the American people, our lands and our natural resources,” Bernstein said. “Today’s decision will allow the DHS to continue to waive key health, environmental and safety laws that have protected communities, wildlife, archaeological, historic and cultural resources.”

Fourteen House Democrats and a group of law professors had urged the Supreme Court to take the case. They agreed with the environmentalists that it was unprecedented to give a Cabinet officer so much power while at the same time stripping judges of the authority to review the legality of his actions.

Rep. Lamar Smith, R-Texas, a proponent of the law, called the court’s action “a victory for the American people” and a milestone toward finishing the barrier.

“According to recent estimates, nearly half a million illegal immigrants cross the border annually,” Smith said.