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

SIX TRUTHS

Reclaiming power from those who abuse it often starts with telling the truth. And in "This Is How Authoritarians Get Defeated," MoJo's Monika Bauerlein unpacks six truths to remember during the homestretch of an election where democracy, truth, and decency are on the line.

Truth #1: The chaos is the point.

Truth #2: Team Reality is bigger than it seems.

Truth #3: Facebook owns this.

Truth #4: When we go to work, we're in the fight.

Truth #5: It's about minority rule.

Truth #6: The only thing that can save us is…us.

Please take a moment to see how all these truths add up, because what happens in the weeks and months ahead will reverberate for at least a generation and we better be prepared.

And if you think journalism like Mother Jones'—that calls it like it is, that will never acquiesce to power, that looks where others don't—can help guide us through this historic, high-stakes moment, and you're able to right now, please help us reach our $350,000 goal by October 31 with a donation today. It's all hands on deck for democracy.

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SIX TRUTHS

Reclaiming power from those who abuse it often starts with telling the truth. And in "This Is How Authoritarians Get Defeated," MoJo's Monika Bauerlein unpacks six truths to remember during the homestretch of an election where democracy, truth, and decency are on the line.

Truth #1: The chaos is the point.

Truth #2: Team Reality is bigger than it seems.

Truth #3: Facebook owns this.

Truth #4: When we go to work, we're in the fight.

Truth #5: It's about minority rule.

Truth #6: The only thing that can save us is…us.

Please take a moment to see how all these truths add up, because what happens in the weeks and months ahead will reverberate for at least a generation and we better be prepared.

And if you think journalism like Mother Jones'—that calls it like it is, that will never acquiesce to power, that looks where others don't—can help guide us through this historic, high-stakes moment, and you're able to right now, please help us reach our $350,000 goal by October 31 with a donation today. It's all hands on deck for democracy.

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