"Waiver Authority Under current law, the Department of Homeland Security (DHS), which now has border control responsibilities formerly granted to the Department of Justice, is already exempted from key environmental laws when necessary to speed up construction of additional fences along the southern border. Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), P.L. 104-208, 110 Stat. 3009-546 Div. C (codified at 8 U.S.C. § 1103 note), empowers the DHS Secretary to waive the National Environmental Policy Act and the Endangered Species Act “to the extent the [DHS Secretary] determines necessary to ensure expeditious construction” of additional physical barriers and roads along the U.S. border “in areas of high illegal entry into the United States.” This waiver power has not, to date, been used. The provision in the REAL ID Act would expand this waiver beyond environmental law to include all laws. It would thus place the DHS Secretary above all federal laws, environmental or otherwise, including the following: * Child labor laws; * Davis-Bacon wage determinations; * Open government laws, such as the Freedom of Information Act; * Ethics laws; * Workplace health and safety laws; * Whistleblower protections; and * Procurement and contracting laws designed to assist small businesses. It is unclear what limits, if any, would be placed on the DHS Secretary’s power to waive federal law. Although subsection (b) of IIRIRA § 102 specifically charges DHS with building second and third fences along a 14-mile stretch of the southern border, that provision is only a specific instance of the larger charge in subsection (a) to “take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border.” The REAL ID Act provision applies the expanded waiver power not to the geographically-limited IIRIRA section but, instead, to the broader scope of IIRIRA § 102(a). This provision would thus place DHS above the law — above all law — whenever it acts to secure the borders and remove “obstacles to detection of illegal entrants.” Exemption from Judicial Review The current version of this measure goes even further than its earlier iteration by adding a clause eliminating judicial review. This section does not apparently have any limitations; it could shield not only government agencies but also private contractors from any liability for deaths, dismemberments, or any injuries whatsoever arising from border security activities. For example, the waiver authority would empower the DHS Secretary to give no-bid contracts for border construction to private companies and then shield those contractors from all employment discrimination and workplace safety laws. Workers harmed by the contractors would be left with no recourse whatsoever, because the exemption from judicial review would apply to “any cause or claim arising from” waiver decisions.