House bill 418, section 102

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There's been a lot of fuss about the REAL ID Act, but Section 102 is really amazing:
Section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1103 note) is amended 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, administrative agency, or other entity 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.'.

No doubt you'd need a lawyer to really interpret this, but doesn't this say that the Secretary can waive any federal law for any reason whatsoever? I know that it says that it has to be to ensure expeditious construction of barriers, etc., but what if the secretary decides that, for instance, the federal civil rights act or Social Security gets in the way of constructing barriers? In what way is ths not a blank check?

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2 Comments

I don't think the executive and legislative branches have the power to completely preclude judicial review. At a minimum, the Supreme Court has the power to review anything it likes.

As far as the wording, my reading is that as long as Chertoff's actions are legitimately and reasonably taken in accordance with 102(c), they are free from the normal procedures for review and damages. However it would still be possible to argue that his actions do not fall within the 102(c) blanket because they are not legitimately oriented towards building the roads and barriers.

P.S. When I preview, my paragraph breaks do not appear; everything is run together. When I post, the breaks appear as they should.

"As far as the wording, my reading is that as long as Chertoff's actions are legitimately and reasonably taken in accordance with 102(c), they are free from the normal procedures for review and damages. However it would still be possible to argue that his actions do not fall within the 102(c) blanket because they are not legitimately oriented towards building the roads and barriers."

That would seem sensible... But then what does the "sole discretion" language mean?

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