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Legacy of a Fence—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on January 22, 2011.

Legacy of a Fence
By Linda Greenhouse ’78 MSL

I fell in love with Janet Napolitano before I ever met her, back in 2005, when she was governor of Arizona and had this to say about the proposal in Washington to build a fence along the Mexican border:

“You show me a 50-foot wall and I’ll show you a 51-foot ladder.”

You don’t hear that kind of blunt-spoken common sense from public officials very often, and we didn’t hear much more of it from Janet Napolitano once she became President Obama’s secretary of homeland security, in charge of the very same fence.

Eventually, the actual fence ground to a halt at something short of 700 miles as the project morphed into a “virtual fence” that was supposed to use the latest technology to catch trespassers across the 2,000-mile southern border. Finally, last weekend, on the same quiet Friday on which the president announced an easing of restrictions on travel to Cuba, Secretary Napolitano announced that the virtual fence was history. She said her department had concluded, after spending $1 billion on the first 53 miles, that the project failed to meet “current standards for viability and cost effectiveness.”

Further efforts would be tailored to specific local conditions, Secretary Napolitano said, explaining: “There is no one-size-fits-all solution to meet our border technology needs.”

While I think Governor Napolitano would have come to that conclusion somewhere short of the first billion, my purpose here is not to beat up on her. To the contrary, I assume she exercised her valuable common sense inside the government and was responsible for bringing this misbegotten substitute for an immigration policy to its inglorious end.

But before the fence fades from memory, if not from view, I want to note that our momentary infatuation with walling off our neighbor to the south leaves a legacy beyond a scarred landscape. This episode inflicted real damage on our domestic law.

I refer specifically to the separation of powers, a concept not without complexity, sorely tested in the post-9/11 era. But it is basically quite straightforward, and in the rush to build the border fence, every branch of government got it wrong.

First, Congress, in a 2005 enactment entitled the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, bestowed on the secretary of homeland security breathtakingly broad authority to set aside “all legal requirements” that he might regard as standing in the way of building the fence.

This authority extended not only to major federal environmental laws but also to any other laws the secretary, in his “sole discretion,” might think of. In early 2008, Secretary Michael Chertoff issued orders setting aside relevant portions of 37 federal statutes (even including the Religious Freedom Restoration Act), as well as all related state and local laws and regulations within a 500-mile swath of the border that cut across four states.

True, in one sense Mr. Chertoff was simply exercising the authority that Congress had given him, which in the ordinary case is what the separation of powers contemplates from the executive branch. But such a broad and unfettered delegation of essentially legislative authority raises substantial constitutional questions, as the secretary, a former Supreme Court law clerk, surely sensed. If he had any doubts, he did not acknowledge them. “Criminal activity at the border does not stop for endless debate or protracted litigation,” he explained.

Affected cities, towns and Indian tribes, along with environmental groups, rushed to court. But Congress had done its best to make that journey fruitless. It required all cases to be filed within 60 days of the secretary’s invocation of authority, thus ensuring that cases would be dismissed as “not ripe,” or for lack of standing, because no actual construction would likely yet be under way. Congress also provided that the federal district courts could hear only constitutional challenges to the statute itself, not garden-variety complaints about how the secretary was carrying out his authority. In effect, Congress was daring federal district judges to declare the law unconstitutional; not surprisingly, none did.

But there’s more: Congress also stripped the federal appeals courts entirely of jurisdiction, leaving the Supreme Court as the only avenue of appeal. One appeal, brought by El Paso County, Tex., did reach the Supreme Court in the spring of 2009. The justices considered the case (County of El Paso v. Chertoff) at eight consecutive closed-door conferences before rejecting it, without dissent or explanation. By refusing to hear the case, the justices thus left on the books, unreviewed, a deeply disquieting distortion of how the American system of government is supposed to work.

Good fences may make good neighbors, but bad fences make bad law.