Congress Grants Too Much Authority, Then Tries to Take it Back… Again

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.


Earlier today, I wrote about the Department of Homeland Security’s intention to ignore three dozen U.S. laws in order to complete 670 miles of border fence by the end of the year. In yesterday’s official statement, Secretary Michael Chertoff cited the total authority Congress granted him to make such decisions. Today, Mississippi Representative Bennie Thompson (D), head of the House Homeland Security Committee, tried to deny the veracity of Chertoff’s defense, arguing that Congress never meant to grant such broad discretion. “Today’s waiver represents an extreme abuse of authority,” he told the Washington Post. “It was meant to be an exception, not the rule.”

Unfortunately, the legislation that authorized the waivers says otherwise. The original law on which Secretary Chertoff is basing his authority is the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which allowed the Attorney General to waive portions of the Endangered Species act and the National Environmental Policy Act as he saw fit. In 2005, Congress passed the Real ID Act, which transferred decision-making power to the head of Homeland Security and greatly expanded his discretion:

Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section.

Denying the power granted by that provision is a little like arguing that voting to authorize military force didn’t mean agreeing to let Bush go to Iraq. If Congress doesn’t like it when the government uses its authority, maybe it should stop granting it.

—Casey Miner

A BETTER WAY TO DO THIS?

We have an ambitious $350,000 online fundraising goal this month and we can't afford to come up short. But when a reader recently asked how being a nonprofit makes Mother Jones different from other news organizations, we realized we needed to lay this out better: Because "in absolutely every way" is essentially the answer.

So we tried to explain why your year-end donations are so essential, and we'd like your help refining our pitch about what make Mother Jones valuable and worth reading to you.

We'd also like your support of our journalism with a year-end donation if you can right now—all online gifts will be doubled until we hit our $350,000 goal thanks to an incredibly generous donor's matching gift pledge.

payment methods

A BETTER WAY TO DO THIS?

We have an ambitious $350,000 online fundraising goal this month and we can't afford to come up short. But when a reader recently asked how being a nonprofit makes Mother Jones different from other news organizations, we realized we needed to lay this out better: Because "in absolutely every way" is essentially the answer.

So we tried to explain why your year-end donations are so essential, and we'd like your help refining our pitch about what make Mother Jones valuable and worth reading to you.

We'd also like your support of our journalism with a year-end donation if you can right now—all online gifts will be doubled until we hit our $350,000 goal thanks to an incredibly generous donor's matching gift pledge.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate