The Real ID Act Border Fence Provision: Congress Delegates Power to the Executive to Waive Laws in the Interest of National Security

Most readers of Engage are likely familiar with the ongoing public controversy over proposals to build fences along the United States borders with Canada and Mexico. Like most Americans, they see the issue as one requiring hard policy choices by Congress. However, since 2005, Congress has delegated its legislative power and jurisdiction over this confl ict almost entirely to the Executive. It has also deprived aggrieved parties of most judicial review of Executive decisions concerning construction of the fence....