Real ID Act
Bill passed in House also empowers security secretary to 'waive all laws'
Yestersday the House passed a bill that would require states to check the citizenship of driver's license applicants, part of an attempt to reform a system manipulated by terrorists such as the 9-11 hijackers.
The Real ID Act was approved in the House by a 261-to-161 vote, and includes a number of anti-terrorism provisions approved last year House in response to the 9-11 commission's recommendations, which were then dropped due to Senate opposition.
The bill purportedly aims to prevent another 9-11-type attack by disrupting terrorist travel.
The Bush administration announced that it strongly supports the bill after it was rejected by Congress and the White House in December as part of several measures to reform and reorganize intelligence agencies.
The National Governors Association and a group representing motor vehicle department administrators are among the bill's opponents, arguing the required background information to determine whether a person is in the country legally would be burdensome.
Under the legislation, judges also could more easily deport a foreigner seeking political asylum who is suspected of terrorism.
Some critics object to an overlooked section that apparently gives the White House sweeping powers to suspend laws for the purpose of protecting U.S. borders.
Section 102 of the REAL ID Act of 2005 seeks to expedite the building of a three-mile fence at the border near San Diego to staunch the flood of illegal aliens that travel through an area known as "smuggler's gulch."
Environmental laws have been the project's chief roadblock, but the bill's language appears to provide an unlimited scope, reading, "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."
Significantly, it also says courts are prohibited from reviewing the secretary's decision.
Taking judicial review away is quite dramatic. The secretary, under a strict reading, could waive any law and conceivably detain people, wiretap -- the list would go on and on of the laws that could be waived.
The bill being run through so quickly, limits participation in the process to only the most aggressive players in Congress.
The section of the proposed legislation reads:
SEC. 102. WAIVER OF LAWS NECESSARY FOR IMPROVEMENT OF BARRIERS AT BORDERS.
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.
Jeff Deist, spokesman for Rep. Ron Paul -- a Texas Republican who regularly raises civil-liberties concerns -- said his staff is getting a first look at the sections related to the fence, but "on face value, as written, it's exceedingly broad."
"The ostensible purpose is to allow the Homeland Security secretary to operate in that one area -- but 'all laws'? Would that include the Posse Comitatus Act?" he asked, referring to the measure passed in 1878 that bars the Army, and now the Air Force also, from executing laws except where expressly authorized by the Constitution or Congress.
Paul contends that despite Sensenbrenners' denials, the REAL ID Act moves the country toward creation of a national ID card.
A group called Defenders of Wildlife said it believes that although Sensenbrenner repeatedly has described H.R. 418 as limited only to the San Diego project, it likely would enable the secretary to waive all laws applying to the nearly 7,500 miles of border with Mexico and Canada.
Rodger Schlickeisen, president of the group, called the section "extreme and unnecessary."
