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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It is astonishingly hard keeping a newsroom afloat these days, and we need to raise $253,000 in online donations quickly, by October 7.

The short of it: Last year, we had to cut $1 million from our budget so we could have any chance of breaking even by the time our fiscal year ended in June. And despite a huge rally from so many of you leading up to the deadline, we still came up a bit short on the whole. We canā€™t let that happen again. We have no wiggle room to begin with, and now we have a hole to dig out of.

Readers also told us to just give it to you straight when we need to ask for your support, and seeing how matter-of-factly explaining our inner workings, our challenges and finances, can bring more of you in has been a real silver lining. So our online membership lead, Brian, lays it all out for you in his personal, insider account (that literally puts his skin in the game!) of how urgent things are right now.

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