ABSTRACT
On April 1, 2008, DHS Secretary Michael Chertoff announced that he was relying on a provision of the Real ID Act of 2005 to ignore existing law in his quest to construct a border wall along 700 miles of the U.S.–Mexico border. The Real ID provisions of the 2005 Real ID Act granted Chertoff statutory authority to waive federal law in construction of the fence: “Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section” (Real ID). Chertoff’s authority also draws upon nearly unreviewable discretion that is granted him by the Secure Borders Act of 2006 and the Consolidated Appropriations Act of 2008. These laws handed Chertoff the power to decide where the fence would be placed and who would be displaced by the fence. The ad hoc and arbitrary decision-making by Congress that gave such power to Chertoff, and Chertoff’s subsequent actions highlight a culture of reckless disregard for law, immigration, national security, and for the people who reside at the border. When Georgio Agamben wrote about sovereignty, this is what he was getting at: situations when government leaders rely on the law in order to step outside its grasp.
