"No court shall have jurisdiction"

By Julia Scott

Published February 14, 2005 9:44PM (EST)

Late last week we reported on the House passage of the Real ID Act, a bill penned by GOP hardliners to recast immigration law with a focus on preventing future terrorist attacks. Democrats and civil libertines have opposed the bill's assault on immigrants and refugees, which is extensive -- but an equally draconian provision for building a security fence on the U.S.-Mexico border that's tucked away in Section 102 of the legislation also warrants attention.

There is a 3.5 mile gap in a fence running along the U.S.-Mexico border in a protected wetland just north of Tijuana. Legislators' efforts to extend the fence and add a second barrier have been obstructed over objections from the California Coastal Commission, which claims that several endangered species will disappear.

Section 102 of the Real ID Act would override their opposition in the name of homeland security. If the bill were to become law, any obstacle to the "expeditious construction" of "barriers or roads" anywhere along the U.S. border -- not just in California -- would disappear. The secretary of Homeland Security would have sole discretion to waive any laws -- environmental, criminal, civil-rights and worker's-rights laws -- in order to erect whatever type of barrier deemed fit. No court would have jurisdiction over any decision made by the secretary of Homeland Security, and any victim of such decisions would be prevented from claiming damages.

Here's the actual language:


"Section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1103 note) is amended to read as follows:

"(c) Waiver-

"(1) IN GENERAL- Notwithstanding any other provision of law, 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 ensure expeditious construction of the barriers and roads under this section.

"(2) NO JUDICIAL REVIEW- Notwithstanding any other provision of law (statutory or nonstatutory), no court shall have jurisdiction--

"(A) to hear any cause or claim arising from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to paragraph (1); or

"(B) to order compensatory, declaratory, injunctive, equitable, or any other relief for damage alleged to arise from any such action or decision."

A coalition of environmental lobbyists called Ci tizens for Sensible Safeguards points out that a previous version of the bill limited the border provision to fourteen miles. The group is readying itself for a fight when the legislation hits the Senate floor, where its future is uncertain.

Julia Scott

San Francisco-based freelance journalist Julia Scott writes about water and energy issues for various publications. She also covers the environment for Bay Area News Group, a chain of newspapers in Northern California.

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