Real ID Act of 2005
REAL ID ACT OF 2005 -- (House of Representatives - February 10, 2005)
BREAK IN TRANSCRIPT
Mr. FARR. Mr. Chairman, I yield myself such time as I may consume.
This amendment is simple and straightforward. It strikes Section 102, which is entitled the ``Waiver of Laws Necessary for the Improvement of Barriers and Borders'' from the bill. I think the provision is trying to fix a process that is not broken.
I offer this amendment to strike Section 102, not to stop construction of the remaining 3 miles of the border fence, but to preserve the rule of law that this country was founded on.
I want my colleagues to listen. I want to make this very clear. The breadth of this provision is unprecedented. The border fence in San Diego is under construction right now. Of the 14 miles authorized to be constructed, more than 9 miles of triple fence have been completed. Only two sections have not been finished. In order to finish the fence, the Customs and Border Patrol has proposed to fill a canyon known as Smugglers Gulch with over 2 million cubic yards of dirt. The triple fence would then be extended across the filled gulch.
In February 2004, the Coastal Commission of California determined that the Customs and Border Patrol had not demonstrated, among other things, that the project was consistent to ``maximize'' to the extent practicable with the policies of the California Coastal Management program, the State program approved under the Federal Coastal Zone Management Act.
The Coastal Zone Management Act requires Federal agency activity within and outside the coastal zone that affects any land use, water or other natural resources in the coastal zone to be carried out in a manner that is consistent, to the maximum extent practicable, with the policies of an approved State management program.
However, as stringent as these requirements are, if a Federal court finds a Federal activity to be inconsistent with an improved State program, the Secretary determines that the compliance is unlikely to be achieved through mediation, the President may exempt from compliance the activity if the President determines that the activity is in the paramount interest of the United States.
All the authority needed to build the barrier fence already exists in law. We can use laws and process that we have to get this fence built. There is no need for a blanket waiver to get any barrier constructed.
On October 26 of 2004 the Coastal Commission staff met with the Customs and Border Patrol/Homeland Security. In that meeting the Customs and Border Patrol explained why they did not believe additional comments, other than those that had already been agreed upon, were necessary to bring the project into compliance with the applicable coastal policies. Customs and Border Patrol maintained that it still wanted to continue to work with the Coastal Commission on measures they had agreed to, and the Coastal Commission indicated their continued willingness to work with them, despite the overall disagreement with some of the project components such as the Smugglers Gulch fill.
Coastal Commission informed Customs that in order to complete the Federal consistency review process, they would have to write a letter outlining their position. However, the Coastal Commission has not received any letter.
So why are we trying to fix something that is working through the established process of law? I ask because the reach of this amendment is actually the border fence in San Diego.
The proposed section 102 gives an unprecedented waiver and power to the Secretary of Homeland Security, not only for the border fence in San Diego but for any, any area. If enacted, the new 102 section would provide the Secretary of Homeland Security not only with the authority to waive all laws he determines necessary to ensure the expeditious construction of barriers and roads, but the requirement that the Secretary do so.
As I mentioned, there is no evidence that such an extraordinary rejection of the rule of law is necessary in the first instance.
Current law allows the DHS Secretary to waive the National Environmental Policy Act and the Endangered Species Act at the barrier, and this same provision was allowed to the Attorney General prior to the creation of the Department of Homeland Security.
This provision has never, to date, been used in San Diego nor am I aware at any other time the authority has been used on the barrier fence. So the remedies are there; they are in the law.
We forget in this debate that Mexico is the number one trading partner of California. It is the busiest border in the world for the legitimate transfer of people and commerce, and it is in the city and County of San Diego, and neither of those jurisdictions has asked for this draconian waiver. Neither has the State of California.
Why would the Government of the United States of America, at a time when we are advocating the support and enforcement of law, why would the government now want to forbid the use of our own law to finish the fence? Not even the importance of securing the border can justify placing a government official above the law.
As I mentioned, my colleagues ought to be wary of what is proposed here. It grants authority to waive all laws notwithstanding any other provision of the law. This section also says, notwithstanding any other provision of the law, no court shall have jurisdiction to hear a claim, to order any relief.
How can we celebrate elections in Iraq and the honor of law when we in Congress are now asking that we waive all laws?
BREAK IN TRANSCRIPT
Mr. FARR. Mr. Chairman, I yield myself the balance of my time.
We have heard a lot of talk here today, and I submit that this is not the answer, to emasculate all the laws. I would bet that if the gentleman from California (Mr. Hunter), the gentleman from California (Mr. Cunningham), myself and any other interested party sat down, one meeting with all the interested parties, we could resolve this. But that is not the way they want to proceed.
This was not a recommendation of the 9/11 Commission. This is essentially emasculating all laws to get an environmental project completed. And emasculating all laws is not the way to do it.
This amendment is a good amendment because it does not allow my colleagues to emasculate all laws. What it allows us to do is to let this process work. And with the pressure that has been brought here today, we can get that fence built. The opposition on this side is not against the fence, it is against emasculating all the laws of the land in order to get there. So I ask for an ``aye'' vote.
Mr. Chairman, I submit for the RECORD a memorandum of the Congressional Research Service, dated February 7, 2005, regarding the REAL ID Act.
CONGRESSIONAL RESEARCH SERVICE,
February 7, 2005.
MEMORANDUM
To: House Committee on Homeland Security, Attention: Sue Ramanathan; and House Committee on the Judiciary, Attention: Kristin Wells.
From: Stephen R. Vin 6a and Todd Tatelman, Legislative Attorneys, American Law Division.
Subject: Legal Analysis of Sec. 102 of H.R. 418, Waiver of Laws Necessary for Improvement of Barriers at Borders.
Pursuant to your request on February 3, this memorandum analyzes section 102 of H.R. 418, the REAL ID Act. Section 102, captioned ``Waiver of Laws Necessary for Improvement of Barriers at Borders,'' provides the Secretary of Homeland Security with authority to waive all laws he deems necessary for the expeditious construction of the barriers authorized to be constructed by §102 of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA) (P.L. 104-208, Div. C, codified at 8 U.S.C. §1103 note) and removes judicial review from such waiver decisions.
Specifically, this memorandum discusses the extent to which Congress has passed laws that provide waivers comparable to §102 of H.R. 418 and outlines some of the legal issues that could potentially arise if §102 is passed in its current form. In view of the short time frame for response, the following analysis is necessarily brief and we refer you to CRS Report RS 22026, Border Security: Fences Along the U.S. International Border for background information on §102 of IIRIRA and the border fence.
H.R. 418, §102
Section 102 of H.R. 418 would amend §102(c) of IIRIRA 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 provisions
If enacted, the new §102 would provide the Secretary of Homeland Security with not only the authority to waive all laws he determines necessary to ensure the expeditious construction of the barriers and roads under §102 of IIRIRA, but the requirement that the Secretary do so. This provision could provide the Secretary with broader waiver authority than what is currently in §102( c) of IIRIRA. This authority would apparently include laws other than the Endangered Species Act and the National Environmental Policy Act, but may not include a waiver of protections established in the Constitution. All laws waived, however, must be determined by the Secretary to be necessary to ensure expeditious construction of the barriers and roads. The waiver authority provided by this amendment would also seem to apply to all the barriers that may be constructed under the authority of §102 of IIRIRA (i.e., barriers constructed in the vicinity of the border and the barrier that is to be constructed near the San Diego area).
Congress commonly waives preexisting laws, though the process necessary to complete the waiver and the number of laws waived vary considerably from provision to provision. Even more common is the use of the phrase, ``notwithstanding any other provision of law.'' While the use of a broad ``notwithstanding any other provision of law'' infrequently governs interpretation, such directives seem facially preclusive, and some courts have determined that ``notwithstanding'' language may serve to explicitly preempt the application of other laws. Other courts, however, have held that such provisions are generally not dispositive in determining the preemptive effect of a statute.
After a review of federal law, primarily through electronic database searches and consultations with various CRS experts, we were unable to locate a waiver provision identical to that of §102 of H.R. 418--i.e., a provision that contains ``notwithstanding language,'' provides a secretary of an executive agency the authority to waive all laws such secretary determines necessary, and directs the secretary to waive such laws. Much more common, it appears, are waiver provisions that (1) exempt an action from other requirements contained in the Act that authorizes the action, (2) specifically delineate the laws to be waived, or (3) waive a grouping of similar laws. The most analogous provisions that we located appear to be, at least on their face, the following:
43 U.S.C. §1652(c): Allows the Secretary of the Interior and other Federal officers and agencies the authority to waive any procedural requirements of law or regulation which they deem desirable for authorizations that are necessary for or related to the construction, operation, and maintenance of the Trans-Alaska oil pipeline system (e.g., rights-of-way, permits, and leases).
25 U.S.C. §3406: Allows the Secretaries of the Interior, Labor, Health and Human Services, and Education, notwithstanding any other law, to waive any statutory requirement, regulation, policy, or procedure promulgated by their agency that is identified by a tribal government as necessary to implement a submitted tribal plan under the Indian Employment, Training and Related Services Demonstration Act of 1992, as amended.
20 U.S.C. §7426: Provides almost identical waiver language to that of 25 U.S.C. §3406, but for plans submitted by tribal governments for the integration of education and related services provided to Indian students.
There are many other provisions that arguably grant broad waiver authority similar to that of §102, but contain qualifications or reporting requirements that seem to limit their breadth. For example, 43 U.S.C. §2008 allows the President to waive provisions of federal law he deems necessary in the national interest to facilitate the construction or operation of crude oil transportation systems, but such waivers must be submitted to Congress, and Congress must pass a joint resolution before the President can act on the waivers. As mentioned above and as the examples we have set forth arguably demonstrate, the breadth of waiver authority granted by §102 of H.R. 418 does not appear to be common in the federal law searched.
Judicial review provisions
By including the language ``no court,'' §102(c)(2) of H.R. 418 appears to preclude judicial review of a Secretary's decision to waive provisions of law by both federal and state courts. The preclusion of judicial review in state court and of state claims appears buttressed by the fact that §102(c) is explicitly intended to preclude judicial review of nonstatutory laws--a term which would seem to imply the inclusion of state constitutional and common law claims. It is generally accepted that Article III of the United States Constitution grants Congress the authority to regulate the jurisdiction, procedures, and remedies available in federal courts. However, what remains uncertain is whether Congress's authority, pursuant to Article III, extends to the jurisdiction, procedures, and remedies of state courts. In addition, it remains uncertain to what extent Congress has Article III authority to prevent courts, state or federal, from addressing and remedying issues arising under the United States Constitution.
With respect to Congress's ability to control the jurisdiction of state courts, the Supreme Court has ruled that subject to a congressional provision to the contrary, state courts have concurrent jurisdiction over all the classes of cases and controversies enumerated in Article III, except for suits between States, suits in which either the United States or a foreign state is a party, and those considered within the traditional jurisdiction of admiralty law. Thus, it appears possible to argue that Congress has a plenary power to allocate jurisdiction between the state and federal courts. In other words, if, for example, Congress can make jurisdiction over an area of law exclusively federal, thereby depriving state courts of any ability to hear the claim, it appears that Congress may also be able to remove a cause of action from state courts without concurrently granting jurisdiction to the federal courts.
State courts, however, are often considered to be independent and autonomous from the federal court system. This independent status has led some scholars to argue that because the Constitution appears to reserve to the states the authority to control the jurisdiction of their own courts, Congress's ``only means of allocating jurisdiction is through control of the federal court's jurisdiction.'' The argument that state courts are autonomous can be derived, in part, from the Supreme Court's doctrine with respect to its ability to review decisions from state courts. While the Court has the authority to review a decision of a state's highest court, it has repeatedly held that it will not do so if the decision rests upon adequate and independent state grounds. This rule is arguably designed to protect a state's interest in developing and applying its own laws. Thus, it would appear that an argument can be made that Congress does not possess the authority to regulate the jurisdiction of state courts directly. It may be the case, however, that Congress's ability to control the jurisdiction of the federal courts indirectly effects and alters the jurisdiction of the state courts, which would appear to preserve their autonomous status.
Turning to Congress's ability to remove jurisdiction with respect to claims arising under the Constitution, it appears that Supreme Court precedent requires that at least some forum be provided for the redress of constitutional rights. While it appears that the Supreme Court has not directly addressed whether there needs to be a judicial forum to vindicate all constitutional rights, it appears that the Court has taken to noting constitutional reservations about legislative denials for jurisdiction for judicial review of constitutional issues, as well as construction of statutes that purport to limit the Court's jurisdiction. At least one justice, however, has indicated that there have been particular cases, such as political question cases, where all constitutional review is in effect precluded.
Nevertheless, the Court has generally found a requirement that effective judicial remedies be present. For example, in cases involving particular rights, such as the availability of effective remedies for Fifth Amendment takings, the Court has held that ``the compensation remedy is required by the Constitution.'' In addition, lower federal courts appear to have held that, in most cases, some forum must be provided for the vindication of constitutional rights. Cases such as these would seem to provide a basis for the Court to find that parties seeking to vindicate other particular rights must have a judicial forum for such challenges; therefore, the Court may construe the provisions of H.R. 418 in a manner that preserves this right.
BREAK IN TRANSCRPT
http://thomas.loc.gov