Congress Grants Too Much Authority, Then Tries to Take it Back… Again

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Earlier today, I wrote about the Department of Homeland Security’s intention to ignore three dozen U.S. laws in order to complete 670 miles of border fence by the end of the year. In yesterday’s official statement, Secretary Michael Chertoff cited the total authority Congress granted him to make such decisions. Today, Mississippi Representative Bennie Thompson (D), head of the House Homeland Security Committee, tried to deny the veracity of Chertoff’s defense, arguing that Congress never meant to grant such broad discretion. “Today’s waiver represents an extreme abuse of authority,” he told the Washington Post. “It was meant to be an exception, not the rule.”

Unfortunately, the legislation that authorized the waivers says otherwise. The original law on which Secretary Chertoff is basing his authority is the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which allowed the Attorney General to waive portions of the Endangered Species act and the National Environmental Policy Act as he saw fit. In 2005, Congress passed the Real ID Act, which transferred decision-making power to the head of Homeland Security and greatly expanded his discretion:

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 under this section.

Denying the power granted by that provision is a little like arguing that voting to authorize military force didn’t mean agreeing to let Bush go to Iraq. If Congress doesn’t like it when the government uses its authority, maybe it should stop granting it.

—Casey Miner

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BEFORE YOU CLICK AWAY!

“Lying.” “Disgusting.” “Scum.” “Slime.” “Corrupt.” “Enemy of the people.” Donald Trump has always made clear what he thinks of journalists. And it’s plain now that his administration intends to do everything it can to stop journalists from reporting things they don’t like—which is most things that are true.

No one gets to tell Mother Jones what to publish or not publish, because no one owns our fiercely independent newsroom. But that also means we need to directly raise the resources it takes to keep our journalism alive. There’s only one way for that to happen, and it’s readers like you stepping up. Please help with a donation today if you can—even a few bucks will make a real difference. A monthly gift would be incredible.

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