Undermining the Rule of Law, Round 2 Coming Up: The Senate

Do you believe in the rule of law? Do you believe in checks and balances? Do you believe that dictatorship is a bad idea? Do you believe in democracy?

Readers who believe these things may be disturbed to find that the House of Representatives passed a bill, H.R. 418, which says “the Secretary of Homeland Security shall have the authority to waive, and shall waive, all laws such Secretary, in such Secretary’s sole discretion, determines necessary” to secure America’s borders. The bill further prohibits judicial or any other review of the Secretary’s decisions.

The Republican majority in the House (96.5% of voting Republicans) passed this bill so quickly that news media barely had time to blink, much less read the bill and report on it. They had a chance to remove the language giving the Secretary of Homeland Security dictatorial powers, but the Republicans (again, 96.5% of voting Republicans) specifically and openly decided in a roll call vote to support dictatorship for the Bush administration.

No, I’m not getting hyperbolic. Look up “dictator” in the Merriam-Webster dictionary: “one holding complete autocratic control.” That’s the Bush administration, under the provisions of this bill. For the persnickety nit-pickers among you who want to argue the point, “autocratic” is defined as “a person (as a monarch) ruling with unlimited authority,” or “one who has undisputed influence or power.” That’s what this bill gives Bush, via his Secretary of Homeland Security.

Too late, members of the House of Representatives have sounded the alarm. As Representative Earl Blumenauer (D-OR) noted on the floor of the House February 9, 2005:

I look at section 102. I wish that it were buried in the legislation, but it is not. It is right here in the beginning. If this provision, the waiver of all laws necessary for quote improvements of barriers at the border was to become law, the Secretary of Homeland Security could give a contract to his political cronies that had no safety standards, using 12-year-old illegal immigrants to do the labor, run it through the site of a Native American burial ground, kill bald eagles in the process, and pollute the drinking water of neighboring communities. And under the provisions of this act, no member of Congress, no citizen could do anything about it because you waive all judicial review. Now, bear in mind you are giving this authority to the head of Homeland Security, hardly a paragon of sensitivity and efficiency. Anybody who stands in those lines week after week or watches the bizarre color-coded warning system knows that that is hardly the exemplar.

Henry Waxman (D-CA) added:

In addition to the unworkable nature of the driver’s license provisions in this bill, I want to raise my deep concern about section 102 of this legislation. This section provides the Secretary of Homeland Security the authority to waive any law for the purposes of building immigration barriers along the border. I do not understand why we need to provide the administration with unilateral authority to waive labor laws, State and local laws, environmental laws, tax codes and criminal laws. This does not apply just in San Diego. It applies throughout the Nation. I am sad to say this bill presents a dangerous new precedent. The Federal Government has never before had unilateral authority to waive child labor laws, civil rights laws, and environmental laws. For Republican Members who want to rein in the unchecked authority of the Federal Government, they might want to carefully examine this provision, which expands it enormously. I urge my colleagues to oppose the legislation.

After Sam Farr (D-CA) spoke the following words, he introduced a specific amendment to delete the provision of Section 102, and only that Section, to provide a test of the will of the House of Representatives. With 96% of Republicans voting Farr’s amendment down, they failed that test:

I have been watching this debate all morning, and I am really concerned about what is happening here on the floor of the House of Representatives. I have never heard so much mistatement of fact about a piece of legislation that is very important. The problem is, this legislation never had a hearing in committee, never had public review. We have never looked at the language; I doubt that any Members have read the bill in its entirety. That is not what this House is all about, because this law is a very, very serious law, and it is going to affect people’s lives. I have heard statements here on the floor that the recommendations in this bill are in the 9/11 Commission. Let me give an example. Section 102 , which deals with the border fence, the commission never even mentioned the border fence. Why? Because it is not a problem. We have been building it. What we have run into is a couple of environmental snags. So what does this bill do? It says okay, waive all that. Waive the law. This is a precedent that has never been done before in the United States Congress. Waive all laws, whether those laws pertain to Indian burial grounds, whether they are labor laws, discrimination laws, small business laws, environmental laws. We will just waive them. And guess what, no court, as it says, “no court shall have jurisdiction.” What kind of a measure is this? Do we just run into problems and we come to the floor of Congress and say, just get rid of the law? Here is a country that celebrated the tearing down of the Berlin Wall, a country that celebrated the elections in Iraq so people will have the rule of law; and then when we have the rule of law, we just waive it.

It’s not too late to stop this bill in the Senate, but time is running short. If you believe that no one should be above the law, call your Senators and tell them in no uncertain terms that you expect them to stand for democracy and against the “REAL ID Act.” The U.S. Senate switchboard number is (202) 224-3121.