In the minds of many Americans, the U.S. border with Mexico has become the heart of darkness, a place wracked with violence and beyond the reach of the law. Politicians play up these fears with legislation such as the bill introduced last month by California Republican Rep. Duncan Hunter, which would require hundreds of miles of new border wall on top of the 646 miles that already stand.
Never mind FBI statistics that show that El Paso, Texas, is the safest large city in America. Never mind the dramatic decrease in the number of undocumented immigrants entering the United States, as the economy has constricted and job opportunities have dried up.
Customs and Border Protection Commissioner Alan Bersin toured Arizona this February and tried to allay some of the fears. The Obama administration is "restoring the rule of law to the U.S.-Mexico border," he emphasized in speech after speech.
Yet Bersin's message is ironic. The rule of law does need to be restored to the border, but it didn't go missing because law enforcement was lacking. The rule of law was suspended when Congress voted to build a wall along the border.
Construction began on the first sections in the 1990s, starting in the Pacific surf and extending into the mountains of Southern California. To give the walls a level base, canyons were going to be filled with millions of cubic yards of earth blasted from nearby hills. But because the sediment would bury an estuary, the California Coastal Commission refused to grant a Clean Water Act permit. That temporarily brought construction to a halt.
Instead of redesigning the walls to comply with federal environmental laws, Congress passed the Real ID Act in 2005, which granted the secretary of Homeland Security the unprecedented power to waive any and all laws to build the border walls. Construction quickly resumed.
Then, when the wall approached the San Pedro Riparian National Conservation Area, which protects Arizona's last free-flowing river, two nonprofits -- Defenders of Wildlife and the Sierra Club -- filed suit. A judge granted an injunction that halted construction, but Homeland Security Secretary Michael Chertoff, citing the Real ID Act, simply waived the laws that the suit was based upon.
To head off future legal challenges, Secretary Chertoff then waived 36 laws along the border in 2008. The laws ranged from the Endangered Species Act and the Farmland Policy Protection Act to the Native American Graves Protection and Repatriation Act.
Defending the waivers, Texas Republican Rep. Lamar Smith said that "while environmental protection laws are certainly important, they should not prohibit law enforcement officials -- who are tasked with securing the border -- from doing their jobs." Smith, however, is just dead wrong.
The idea that some federal laws interfere with law enforcement is the broken logic at the heart of the Real ID Act. Immigrants and smugglers have climbed over border walls, tunneled under them, or, more often, simply gone around them by wading into the ocean. More undocumented immigrants overstay their visas than trek overland to cross the border. Even the Border Patrol estimates that the border wall - described by many as a mere "speed bump in the desert" -- will only slow determined crossers down by minutes.
But the border wall's actual impact on border security and border ecosystems is beside the point for politicians. Think of the wall as a prop, a backdrop that can be photoshopped into a campaign ad behind the candidate to project an image of strength and security in a scary world. Those of us who live along the border, however, are left with the wall's real consequences -- land condemnations and environmental destruction.
The first step towards restoring the rule of law on the border is obeying the law. The Department of Homeland Security should renounce the existing waivers and pledge to uphold all of our nation's laws, and Congress should repeal the Real ID Act's waiver authority.
Leaving the Real ID Act on the books and allowing the waivers to stand sets a precedent that should concern all Americans. If our nation's laws can so easily be set aside to build border walls today, they can be set aside tomorrow for whatever crisis grips us next.
Scott Nicol is a contributor to Writers on the Range, a service of High Country News (hcn.org). He lives in McAllen, Texas, and co-chairs the Sierra Club's Borderlands Team.
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