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

Facts matter: Sign up for the free Mother Jones Daily newsletter. Support our nonprofit reporting. Subscribe to our print magazine.


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

THE END...

of our fiscal year is Thursday, June 30, and we have a much larger fundraising gap than we can easily manage with only days left to go.

Right now is no time to come up short: If you value the hard-hitting, democracy-protecting, justice-advancing journalism you get from Mother Jones, please help us keep charging as hard as we possibly can with a much-needed and much-appreciated donation today.

payment methods

THE END...

of our fiscal year is Thursday, June 30, and we have a much larger fundraising gap than we can easily manage with only days left to go.

Right now is no time to come up short: If you value the hard-hitting, democracy-protecting, justice-advancing journalism you get from Mother Jones, please help us keep charging as hard as we possibly can with a much-needed and much-appreciated donation today.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate