Fencing Out the Constitution

By Jonathan Dunten, Esq.

October 2008

With the goal of completing some 698 miles of fence along the U.S.-Mexico border by the end of 2010, Secretary of Homeland Security Michael Chertoff has been armed by Congress with the authority to “waive all legal requirements” “in his sole discretion,” including those designed to protect the environment, Native American graves and territorial integrity – without judicial review. This extraordinary delegation in the hands of an appointed executive officer raises critical questions regarding separation of powers, federalism and equal protection of the laws. The Texas Border Coalition, including 19 cities, 18 Chambers of Commerce and 10 counties challenged this delegation of power as unconstitutional.