A bill to establish national identification card standards and restrict asylum claims also contains a controversial provision to empower the Secretary of Homeland Security to waive any and all laws in the course of securing the borders from illegal immigration. The provision also includes an exemption from judicial review that not only shields the waiver decisions from court scrutiny but also strips courts of any power to order remedies for anyone harmed by the consequences of such decisions. Background The issue that notionally triggered the push for this provision is the desire to complete second and third sets of fencing along the nation’s southern border. One 14-mile section of fencing in the San Diego area remains to be completed, because the law requires the federal government and the California Coastal Commission to attempt to reach agreement on the environmental impacts of related construction work. As explained in a Congressional Research Service analysis, that law ultimately allows the White House to waive the restrictions when necessary to national security. For more information on this bill and related news, visit www.ombwatch.org/regs/InCongress. A version of this measure was first introduced in the 108th Congress by Rep. Doug Ose (R-CA), but it failed to advance. Reps. David Dreier (R-CA) and Duncan Hunter (R-CA) tried in conference to sneak the amendment onto the bill to implement recommendations of the 9/11 Commission, but that effort was rejected by Senate conferees. News sources at the time reported that this amendment was one of several that zealous House Republicans pushed so vigorously that they almost derailed any agreement on the 9/11 bill. About This Provision The same language that almost derailed the conference committee has returned as section 102 of H.R. 418, the “REAL ID Act of 2005.” It has two working parts: (1) the waiver authority and (2) the exemption from judicial review. Text from the “REAL ID Act”      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 … 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.” Waiver Authority Under current law, the Department of Homeland Security (DHS), which now has border control responsibilities formerly granted to the Department of Justice, is already exempted from key environmental laws when necessary to speed up construction of additional fences along the southern border. 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), empowers the DHS Secretary to waive 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.” This waiver power has not, to date, been used. The provision in the REAL ID Act would expand this waiver beyond environmental law to include all laws. It would thus place the DHS Secretary above all federal laws, environmental or otherwise, including the following:

• Child labor laws;
• Davis-Bacon wage determinations;
• Open government laws, such as the Freedom of Information Act;
• Ethics laws;
• Workplace health and safety laws;
• Whistleblower protections; and
• 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 REAL ID Act provision applies the expanded waiver power not to the geographically-limited IIRIRA section but, instead, to the broader scope of IIRIRA § 102(a). This provision 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.” Exemption from Judicial Review The current version of this measure goes even further than its earlier iteration by adding a clause eliminating judicial review. This section does not apparently have any limitations; it could shield not only government agencies but also private contractors from any liability for deaths, dismemberments, or any injuries whatsoever arising from border security activities. For example, the waiver authority would empower the DHS Secretary to give no-bid contracts for border construction to private companies and then shield those contractors from all employment discrimination and workplace safety laws. Workers harmed by the contractors would be left with no recourse whatsoever, because the exemption from judicial review would apply to “any cause or claim arising from” waiver decisions.