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U.S. Supreme Court Asked to Answer: Is Chertoff Above the Law?

Defenders of Wildlife and Sierra Club take their constitutional challenge to the next level

(03/17/2008) -

WASHINGTON – Today, Defenders of Wildlife and The Sierra Club filed a petition asking the U.S. Supreme Court to hear its argument that the REAL ID Act, which grants Department of Homeland Security (DHS) Secretary Michael Chertoff unprecedented and sweeping authority to waive any and all laws to expedite the construction of a wall along the U.S.-Mexico border, is unconstitutional besides being harmful to the environment and border communities. The two conservation groups charge that such unbounded authority to the executive branch is a violation of the Constitution’s separation of powers provisions.  

“By granting one government official the absolute power to pick and choose which laws apply to border wall construction, the REAL ID Act proves itself to be both inherently dangerous and profoundly un-American. The issue here is not security vs. wildlife, but whether wildlife, sensitive environmental values and communities along the border will be given fair consideration in the decisions the government makes,” said Rodger Schlickeisen, president of Defenders of Wildlife. “We are hopeful that the Supreme Court will take up this case in order to protect the fundamental separation of powers principles enshrined in the United States Constitution”

“Laws such as the National Environmental Policy Act and the National Historic Preservation Act are part of America's enduring legal framework, and no agency or public official should be allowed to ignore them,” said Carl Pope, executive director of Sierra Club. “Our laws have provided Americans a voice in the decision-making process that affects their lives, their human rights and the protection of wildlife; our government must not exempt itself from obeying those laws.”

The groups’ petition is the latest chapter in their legal efforts dating back to October, 2007 to safeguard the borderlands in the face of aggressive border wall construction. At that time, Defenders and The Sierra Club filed a lawsuit challenging DHS and Bureau of Land Management’s (BLM) approval of border wall construction within the San Pedro Riparian National Conservation Area in Arizona. After a federal judge in the U.S. District Court for District of Columbia found that the groups would likely prevail on their claims and issued an injunction blocking further construction of the wall, Secretary Chertoff waived 19 laws intended to protect public health, wildlife and endangered species, clean air and water, and historic and archeological sites to move forward with construction. 

In their petition to the U.S. Supreme Court, Defenders and The Sierra Club contend that the REAL ID Act’s waiver provision unconstitutionally allows the DHS secretary unilaterally to repeal laws, threatening the system of checks and balances assured in the Constitution.

Since passage of the REAL ID Act in 2005, Secretary Chertoff has used this power to waive laws on three occasions:

  • to complete a wall near San Diego, California
  • to remove vehicle barriers and replace them with a wall in the Barry M. Goldwater Range in Arizona
  • to build a border wall within the San Pedro Riparian National Conservation Area.

In addition, Secretary Chertoff appears poised to again waive laws in relation to proposed border wall construction in Texas, in order to bypass extensive opposition from local residents, elected leaders, business owners, and conservationists.

“It isn’t too much to ask that DHS and other government agencies comply with our nation’s environmental laws along the border, particularly where international treasures like the San Pedro River are at stake,” said Schlickeisen. “We can not afford to let this keep happening all across the border or we will be left with nothing but a 700-mile testament to our own short-sightedness.”

Defenders and Sierra Club are represented by the Yale Law School Supreme Court Clinic, led by Professor Dan Kahan. Defenders is also represented by Andrew J. Pincus and Charles Rothfeld of Mayer Brown, LLP.

Petition for a Writ of Certiorari
San Pedro Border Fence Legal Case
Defenders border policy work


Defenders of Wildlife is dedicated to the protection of all native animals and plants in their natural communities.  With more than 1 million members and activists, Defenders of Wildlife is a leading advocate for innovative solutions to safeguard our wildlife heritage for generations to come.  For more information, visit

With more than 1.3 million members and supporters, Sierra Club, established in 1892 by John Muir, is the oldest, largest and most influential grassroots environmental organization in the United States. Visit



Joe Vickless, Defenders of Wildlife, (202)772-0237
Oliver Bernstein, The Sierra Club, (512) 289-8618

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