Published June 15, 2009
The Supreme Court will not jump into the contentious debate over the construction of a 500 mile-long fence on the United States-Mexico border.
The high court announced Monday it is refusing to consider a challenge to former Homeland Security Secretary Michael Chertoff's decision to expedite border fence construction by waiving it from 37 federal and local laws.
A collection of environmental groups, the Ysleta del Sur Pueblo Indian tribe and lawmakers in El Paso, Texas, brought the lawsuit and argued Chertoff's decision to fast-track the project was a "sweeping" and "unprecedented" power grab.
They also claimed Congress was complicit in handing over power to the executive branch.
"If allowed to stand," their brief to the court says, "(Chertoff's) order would constitute an unprecedented expansion of agency authority to preempt state and local law without clear congressional authority-and without any oversight by any court."
The tribe claims the fence blocks access to the Rio Grande river for religious and cultural activities. The city says the fence prevent it from accessing a major water supply for its residents.
The Obama administration asked the court to not take the case. It argued Congress gave the Homeland Security secretary the power to issue the waiver and that lower court rulings to that effect should not be reviewed.
The U.S. Customs and Border Protection says barring any changes in policy, it will finish the fence by year's end. As of now it at least 93 percent complete with most of that fencing erected in Arizona.
Claude Knighten, a spokesman for CBP, says the waivers signed by Chertoff "allowed the construction to proceed without delay or interference."
This is the second challenge to the fence batted down by the court. Congress authorized the fence to help slow illegal immigration, and empowered Chertoff to waive the federal laws in 2005.