Gary Martin: Court's fence ruling strengthens government power

Web Posted: 06/27/2008 05:34 PM CDT

San Antonio Express-News

The U.S. Supreme Court gave the Bush administration a big boost this week for its plans to finish 670 miles of fence along the Southwest border by the end of the year.

Supreme Court justices refused to hear a case brought by the Sierra Club and the Defenders of Wildlife, two environmental groups, to stop fence construction in Arizona, in an area popular with bird watchers along the San Pedro River. The court refused to hear the appeal, without comment.

And the decision served as a death knell for future legal challenges to the fence based on the constitutionality of the government's right to waive environmental protections for construction, said Brian Segee, a Defenders of Wildlife lawyer.

Similar opposition to the fence has been mounted in the Lower Rio Grande Valley, in Texas, the northernmost habitat for the endangered jaguarundi, a small mountain lion-like cat found as far south as Central America.

But the environment is only one part of the opposition to the border fence, which has become a political football in this presidential election year.

Republicans who passed the 2005 law that gave the Homeland Security secretary authority to waive environmental laws praised the high court's decision this week.

Rep. Lamar Smith of San Antonio, the ranking Republican on the House Judiciary Committee, said the high court's decision means the fence can be built on the border “without legal restrictions or interference from environmentalists.”

But every Texas lawmaker whose congressional district includes the U.S.-Mexico border — Solomon Ortiz, Ruben Hinojosa, Henry Cuellar, Ciro Rodriguez and Silvestre Reyes, all Democrats — backed the appeal by the environmental groups.

The border lawmakers also support legal efforts by Texas border cities and counties to halt construction of the fence because of disputes between the government and landowners over property rights.

Ortiz said he supports border security and increased law enforcement, but he's concerned about heavy-handed tactics by the government in South Texas.

His congressional district includes the University of Texas at Brownsville-Texas Southmost College, which would see some of its campus cut off by the border fence under current Department of Homeland Security proposal.

Fort Brown, a Mexican War era fortress, would be between the fence and the Rio Grande, virtually a no man's land under the DHS plan.

While he backs border security, Ortiz said, “we also have to protect private property landowners.”

It's hard to tell where the Supreme Court justices come down on the case. Because the rejection of the appeal comes without comment, there is no sense of whether the high court was divided along ideological lines.

Segee said that when the Supreme Court denies a petition for certiorari, ”there's no guidance there, no sense of whether the court is divided. That's something that never becomes available.”

Homeland Security Secretary Michael Chertoff is rushing to complete the fence by the end of the year.

He makes a valid point when he tells Congress that without the waivers, the project would be mired in bureaucratic red tape that could derail construction indefinitely.

Russ Knocke, a DHS spokesman, said Congress made clear “that one of the nation's highest priorities is securing the southern border, and the court's refusal to take the case allows the department's use of the waiver to stand.”

Even if the fence is not completed, it's unknown whether the outcome of the presidential election would make a difference.

Sen. Barack Obama and Sen. John McCain, the presumptive Democratic and Republican presidential nominees, say they want technology and manpower to strengthen the border.

But they both voted for the Secure Fence Act in 2006.

In the end, South Texas lawmakers, like Hinojosa, worry the government's powers will “continue to go unchecked and therefore continue to endanger the security of Texans and our environment.”

And South Texas may not have the clout to get that changed. Hinojosa's congressional border district in the Rio Grande Valley also happens to be one of the poorest in the nation.

gmartin@express-news.net