Waiver power in supplemental bill draws fire

Advocates for open government and environment are sounding alarms about a sweeping provision in the Iraq war supplemental bill approved by Congress Tuesday, granting the Secretary of Homeland Security virtually unlimited authority to waive laws related to border construction.

Although the provision is intended to speed road projects near borders, the language is written so broadly that it would allow Secretary Michael Chertoff to waive nearly any law at his discretion, including those related to the environment, public health, workplace safety, business practices and discrimination, according to J. Robert Shull, regulatory policy director for OMB Watch, a group advocating open government.

The provision also could be used to create nearly instant changes to major IT-related border programs, such as U.S. Visit, which screens incoming visitors at the borders, and America's Shield, which integrates technology sensors along the borders, Shull said.

"This is huge and unprecedented," Shull said today. "This extraordinary waiver applies to any law, and it's dangerous to give the secretary that type of sole discretion."

"Do we really want the head of Homeland Security to have more authority than the commander in chief?" said Robert Perks, a spokesman for the Natural Resources Defense Council, an environmental advocacy group. "This is a license to waive any law, for any reason ? or for no reason at all."

The president is expected this week to sign the provision, contained in the $82 billion Iraq War supplemental spending bill. It is in Section 102, which is devoted to the Real ID Act, which sets controls for states issuing drivers licenses.

"Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements" that he, in his sole discretion, determines necessary "to ensure expeditious construction of the barriers and roads under this section," the waiver provision states. "Any such decision by the secretary shall be effective upon being published in the Federal Register."

Additional language specifies that legal objections to any waiver made by the secretary under Section 102 can be made only on constitutional grounds and must be filed in federal courts within 60 days; appeals to the federal courts must be filed with the Supreme Court.

The exemption provision was inserted initially to resolve a local controversy over the environmental impacts from construction of a border fence in the San Diego area. However, it expanded to grant the secretary unlimited authority, the advocates said.

"The language of this bill is so broad that it appears to provide waiver authority over laws that might impede the expeditious construction of barriers and roads anywhere in the United States ? not just to finish the border fence in Southern California," said Sen. Dianne Feinstein (D-Calif.), in a statement released April 21.

"It seems to me that the authority under this provision is so broad that it would give the Secretary of the Department of Homeland Security the ability to unilaterally waive all laws to construct the border fence, including possibly wage and hour laws, criminal laws, labor law and civil rights," Feinstein said.

About the Author

Alice Lipowicz is a staff writer covering government 2.0, homeland security and other IT policies for Federal Computer Week.

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