Border Fence Challenge Rebuffed by Supreme Court

David G. Savage, Los Angeles Times, June 23, 2008

The government’s plan to build a 670-mile fence along the U.S.-Mexico border took another step forward Monday when the Supreme Court turned away a legal challenge from environmentalists.

The court’s action clears the way for U.S. officials to press ahead with the project with little worry that judges will be able to stop it.

Three years ago, Congress gave Homeland Security Secretary Michael Chertoff an unusual power to “waive all legal requirements” that could stand in the way of building the fence.

These requirements included the nation’s environmental protection laws. The same congressional action took away the authority of judges to review Chertoff’s decisions.

Last year, after Chertoff waived at least 20 laws and regulations to complete a section of the fence in Arizona, two environmental groups sued. They said it was unconstitutional to give a Cabinet secretary such sweeping power.

But a federal judge rejected that claim. And on Monday the Supreme Court without comment declined to hear a petition submitted by Defenders of Wildlife and the Sierra Club.

The high court’s refusal is not a ruling, and it doesn’t mean the justices won’t reconsider the issue. But for now, Chertoff and his department have the go-ahead to proceed with the fence. Nearly half the barrier has been built.

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The project still faces legal challenges from landowners and tribal groups.

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