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[thomas <thomas AT tbeckett.com>]

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Holy fuck.  Why not just declare martial law and be upfront about it?

As an attorney, however, I do think that there are problems with the
term "waiver" and a Separation of Powers issue that could be litigated
heavily.  I the law "waiver" means the giving up of a right.  If the DHS
Secretary wants to "waive" a law, it would have to be a law that he has
a right to enforce in the first place.  That would exclude all state
laws, plus arguably federal laws that have nothing to do with security.
~ It may be that the authors of this bill meant "suspend" instead of
"waive".  But they didn't use that term.

Also, there's some authority to suggest that the Congress can't delegate
to the Executive Branch the power to pick and choose among legislation
to enforce.  The line-item veto case is a point in particular.

But I ramble....

TaB


Phillip Rhodes wrote:
|
| Umm... Just had a chance to really read the other part.  Check
| this out:
|
| SEC. 102. WAIVER OF LAWS NECESSARY FOR IMPROVEMENT OF BARRIERS AT BORDERS.
|
| 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 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.'.
|
|
| So, if this becomes law, the DHS can basically do any damn
| thing they want, with no judicial review, if it's in the name
| of building barriers and roads at the borders.  Whoooah.
|
|
| TTYL,
|
|
| Phil

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Thomas A. Beckett, JD & MBA              Business Law and Consulting
828-713-1668            <http://www.tbeckett.com>           919-824-5696
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