Rep. David Dreier (R-CA) is promoting an amendment to pending intelligence overhaul legislation that would exempt the Department of Homeland Security from all federal law in the course of securing the nation's borders. Dreier is championing this amendment in the conference committee that is working to resolve differences in the House and Senate versions of a bill to implement reforms suggested by the 9/11 Commission. Text of the Dreier Amendment Sec. 3131. Waiver of Laws Necessary for Improvement of Barriers at Borders     Section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 * * * is amended to read as follows:     "(c) Waiver -- 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." The Department of Homeland Security (which now has border control responsibilities formerly granted to the Department of Justice) is already exempted from the National Environmental Policy Act and the Endangered Species Act "to the extent the [DHS Secretary] determines necessary to ensure expeditious construction" of additional physical barriers and roads along the U.S. border "in areas of high illegal entry into the United States" by section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), P.L. 104-208, 110 Stat. 3009-546 Div. C (codified at 8 U.S.C. § 1103 note). The Dreier amendment would expand this waiver to cover all laws in the U.S. Code short of the Constitution itself. It is also drafted to make the Secretary's decision unreviewable in court challenges. The original iteration of this amendment, as proposed in the House by Rep. Doug Ose (R-CA), would have expanded IIRIRA § 102 by listing a catalogue of environmental laws in addition to NEPA and the ESA. The version pushed by Dreier expands this exemption even further, beyond environmental laws, to put the DHS Secretary above all federal laws, environmental or otherwise, such as the following:

• Child labor laws
• Davis-Bacon wage determinations
• Ethics laws
• Age discrimination laws (which exceed constitutional guarantees)
• Whistleblower laws
• Employee protections
• Procurement and contracting laws designed to assist small businesses

It is unclear what limits, if any, would be placed on the DHS Secretary's power to waive federal law. Although subsection (b) of IIRIRA § 102 specifically charges DHS with building second and third fences along a 14-mile stretch of the southern border, that provision is only a specific instance of the larger charge in subsection (a) to "take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border." The Dreier amendment, which would replace the NEPA and ESA waiver in subsection (c), would permit the expanded waiver power whenever DHS deems it necessary "to ensure expeditious construction of the barriers and roads under this section." The words "this section" apparently apply the waiver power to all of IIRIRA § 102, not just § 102(b) in particular. The Dreier amendment would thus place DHS above the law -- above all law -- whenever it acts to secure the borders and remove "obstacles to detection of illegal entrants."