Election 2008: What’s At Stake?

In a front page column in the New York Times last week, Adam Liptak outlined a brewing legal battle against Homeland Security chief Michael Chertoff’s use of sweeping new powers to expedite the construction of barriers along America’s southwestern borders.

But a legal challenge to the use of those powers is being heard at the Supreme Court, posing yet another obstacle to the border fence project, even as it being assailed by activists on both sides of the immigration debate.

Citing criminal activity at the Mexican border and acting under a 2005 law that empowered him to disregard any legal barriers in the way, Chertoff recently suspended more than 30 laws that could impede the construction of a border wall. Among these were laws governing the “environment, endangered species, migratory birds, the bald eagle, antiquities, farms, deserts, forests, Native American graves and religious freedom.”

The law has been challenged in Supreme Court on the grounds that it gives away too much of Congress’ authority. Arizona environmentalists have challenged similar waivers filed by Chertoff in a case that has now reached the Supreme Court. Any court decision on the matter will likely affect the recent waivers. The government’s response, which was due this week, might echo a previous Justice Department argument that Congress is allowed to delegate issues of national security, immigration, and foreign affairs because the Constitution gives the executive branch lots of wiggle room in those arenas.

In January, Chertoff cited the murder of an American border patrol agent by Mexicans 20 miles west of Yuma, Ariz., as an example of Mexican drug runners’ increasing brutality, which has apparently spread across into U.S. territory. An article by the New York Times described a spiraling conflict of assassinations and fierce gun fights between Mexico’s federal police and criminal organizations like the Zetas. “Founded by former Mexican commandos trained in the United States, the Zetas have long been the professional assassins of the Gulf Cartel, which controls the flow of drugs along the Gulf Coast and across the Texas border,” according to the piece.

But Chertoff’s border woes are also coming from Washington, where technical delays and the $7.6 billion price tag for a plan to build a virtual fence of cameras and radars across the American southwest is uniting politicians and activists from both sides of the immigration debate in opposition.

A recent report from the Government Office of Accountability took particular issue with Project 28, a portion of the program contracted to Boeing.

According to last month’s report in Congressional Quarterly, Chertoff “took exception to some of GAO’s conclusions, but he is increasingly on an island in defense. … When Chertoff and Bush leave office next January, it’s possible their vision of electronic surveillance technology on the border will go with them.”