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So Much for the Rule of Law

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I have to say, I have mixed emotions about the New York Times’s decision to replace Linda Greenhouse with Adam Liptak. I’m afraid it is going to defang him and render him unable to really dig into political topics with a definite viewpoint. Like, say, he did in his Sidebar column yesterday.

This week, Liptak takes on the Border Fence. More specifically, he is scratching his head about Congress’s 2005 decision to give the Secretary of Homeland Security the power to suspend any federal law that was interfering with border control. Literally. And, not only that, but to suspend judicial review of his decisions so that courts cannot tell him that he has crossed the line.

Securing the nation’s borders is so important, Congress says, that Michael Chertoff, the homeland security secretary, must have the power to ignore any laws that stand in the way of building a border fence. Any laws at all.

Last week, Mr. Chertoff issued waivers suspending more than 30 laws he said could interfere with “the expeditious construction of barriers” in Arizona, California, New Mexico and Texas. The list included laws protecting the environment, endangered species, migratory birds, the bald eagle, antiquities, farms, deserts, forests, Native American graves and religious freedom.

The secretary of homeland security was granted the power in 2005 to void any federal law that might interfere with fence building on the border. For good measure, Congress forbade the courts to second-guess the secretary’s determinations. So long as Mr. Chertoff is willing to say it is necessary to void a given law, his word is final.

Thankfully, in the wake of Chertoff’s decision to suspend 19 environmental laws that stood in the way of the fence-building, two environmental groups have brought a lawsuit to challenge the delegation of power as an unconstitutional violation of the separation of powers. They’re likening it to the Line Item Veto, which the Supreme Court struck down several years ago. The D.C. Circuit disagreed, but now the case may be headed to the Supremes.

Liptak’s views on the issue are only thinly veiled:

People can disagree about the urgency of border security and about whether it is more or less important than, say, the environment. Congress is entrusted with making those judgments, and here it has spoken clearly. In the process, it has also granted the executive branch more of the sort of unilateral power the Bush administration has so often claimed for itself.

No one doubts that Congress may repeal old laws through new legislation. But there is a difference between passing a law that overrides a previous one and tinkering with the structure of the Constitution itself. The extraordinary powers granted to Mr. Chertoff may test the limits of how much of its own authority Congress can cede to another branch of the government.

How many times is it now that the Bush administration has tested the limits of executive power? I have definitely lost count. And Congress may be the biggest culprit here. It was a different Congress in 2005, but this Democratically-controlled Congress hasn’t done much to right that Congress’s wrongs. At this point, it may all hang on Justice Kennedy.

No wonder Liptak’s hackles are up.

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