II. Waiver of Laws to Facilitate Barriers at Border44

Section 102 of the IIRIRA generally provides for construction and strengthening of barriers along U.S. land borders and specifically provides for 14 miles of barriers and roads along the border near San Diego, beginning at the Pacific Ocean and extending eastward. IIRIRA § 102(c) provides for a waiver of the Endangered Species Act of 1973 (ESA)45 and the National Environmental Policy Act of 1969 (NEPA)46 to the extent the Attorney General determines is necessary to ensure expeditious construction of barriers and roads...

H.R. 418 [the Real ID Act of 2005] would provide additional waiver authority over laws that might impede the expeditious construction of barriers and roads along the border. H.R. 418 would require the Secretary of Homeland Security to waive any and all laws that he determines necessary, in his sole discretion, to ensure the expeditious construction of barriers and roads under IIRIRA § 102...

Section 102 of H.R. 418 would amend the current provision to require the Secretary of Homeland Security to waive any law upon determining that a waiver is necessary for the expeditious construction of the border barriers. Additionally, it would prohibit judicial review of a waiver decision or action by the Secretary and bar judicially ordered compensation or injunction or other remedy for damages alleged to result from any such decision or action.

You can read more on the tinfoil hat implications of this here if you're interested, but I'll sum it up for you: Congress has crafted a completely unprecedented provision that guts the principle of judicial review by granting the DHS secretary complete and total immunity from the courts when it comes to the construction of "barriers and roads" in this one specific geographical region, and they've buried this provision inside a national ID card act which is itself attached to a large military appropriations bill that no Congressperson in their right mind would vote against (money for the troops and all that).

Obviously, if this passes, it'll set a precedent. First, some obscure border region outside of San Diego, and then on to bigger and better things? As the present bill stands, if DHS built a road through an endangered wetland and committed four murders in the process, nobody could take the government to court over it. Is this the kind of unchecked power that we want Congress to have? The sky's the limit, once the A3S2 can of worms is opened tomorrow.