December 16, 2008
El Paso versus the border fence

El Paso joins the lawsuit brigade against the border fence.

In asking the court to review a lawsuit previously dismissed by a federal court judge, lawyers for El Paso County contend that U.S. Homeland Security Secretary Michael Chertoff overstepped his legal authority when he waived 37 federal laws that could have slowed or blocked construction of fencing along the border.

Attorneys for the county also allege that Chertoff violated the 10th Amendment, which grants states the right to enforce laws neither prohibited by nor delegated to the federal government.

Congress authorized the fence to help secure the border and slow illegal immigration, and then gave Chertoff the power to waive the federal laws in 2005.

Previous legal challenges to the waiver authority, which includes a lawsuit by several environmental groups in San Diego, failed to gain traction in courts. The Supreme Court also declined to hear border fence challenges.

El Paso County Attorney Jose Rodriguez said Wednesday he believed the 10th Amendment protects the county and other jurisdictions from Chertoff's action.

"From our point of view, we think that we have made some compelling arguments about why the Supreme Court should take up our case," Rodriguez said. "This case is a much more significant case than (the San Diego) one. That involved fewer laws. It wasn't anywhere near the 37 laws. The secretary also waived any state and local laws that are derived from or related to those statutes."

Okay, I guess I can see the reasoning behind that, but at this point I think the odds are much greater that a lack of desire to push this any further by the Obama Administration and Congress will be what actually stops the fence. Take your shot in court - hey, you never know - but pushing for a change with the new administration seems like the more effective way to go.

Posted by Charles Kuffner on December 16, 2008 to National news
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