Does the Real ID act contain a Constitution-busting Trojan horse?
II. Waiver of Laws to Facilitate Barriers at Border
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.
Opponents of the concept of judicial review appeal to an obscure and cryptic article of the Constitution, the (in)famous Article 3, Section 2 (A3S2 for short), which states:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
That last sentence is the kicker, because it looks for all the world like language that would enable Congress to wave a magic A3S2 wand over any piece of legislation no matter how outrageous and have it be completely exempt from review by the courts. The implications for the system of checks and balances if Congress actually invokes this provision are about as profound as it gets, which is why no Congress in American history has ever opted to open that particular can of worms... until now.