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Flubber
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With a view of the Rockies
Aug 2000
time: 22:20
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Article seems to be a lot of inflated rhetoric. It appears that the construction of barriers is to be given prioty and will be exempted from certain acts or certain acts may be waived by a given official. This is a discretionary power and might be subject to judicial review, absent the mentioned provisions.
Nothing in a simple piece of legislation prevents judicial review of the constitutionality of a given measure
I don't see a big legal problem here. Whether or not you agree with this legislation, it seems pretty simple that if Congress has enacted legislation in the past, Congress has the powwer to amend or waive that legislation in ANY way that does not violate constitutional rights
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MichaeltheGreat
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Apolyton Grand Executioner
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mooning the house that Ruth built.
Oct 1999
time: 21:20
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quote:
Originally posted by SpencerH
So whats the problem? Tree-huggers will no longer be able to delay defending the borders (by building barriers to prevent unimpeded movement) by concerns about the habitat of the "warble-throated shitehawk". |
The problem isn't just "tree-huggers" although those ignorant of the scope and purpose of national environmental legislation like to use that label to bamboozle the public at large.
If you're a large landowner of industrial zoned land near the border, would you like to find out you can't develop your land (either absolutely, or in any economically feasible way) because a neighboring land owner has altered the drainage characteristics of your site area such that you are now in a flood plain?
Or how about a road realignment necessitated by that landowner's activity, such that your property loses major arterial road frontage which was part of the whole reason you invested in that ranch property years ago, knowing it was in the process of being rezoned industrial? 
A huge portion of environmental processing and land development involves identifying and mitigating commercial impacts on neighboring land owners and users. Species and habitat protection is only a part of it. Even species and habitat protection can have commercial implications, either in affecting residential property values (greenbelt preserves between residential and commercial/industrial areas, or impacts on ecosystems affecting agriculture).
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As far as the legality goes, it's not unconstutional. Congress has the authority to limit the scope of judicial review (which act itself would be subject to judicial review to prevent Congress exceeding its constitutional authority by infringing separation of powers.)
Many Federal laws also have provisions (and NEPA is one) by which the Government, through some specified cognizant authority (in this case SECDHS), can make a determination and finding that national security or the effective operation of the Government require a specific exemption to provisions of that law. The determination and finding has to be made on a case by case basis, executed by the cognizant official or his authorized delegate, and recorded in the Federal Register.
That's just one of the fairly groovy things I learned while working for the Government.
Last edited by MichaeltheGreat on 12-05-2005 at 01:24
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MichaeltheGreat
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Apolyton Grand Executioner
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mooning the house that Ruth built.
Oct 1999
time: 21:20
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quote:
Originally posted by Zkribbler
This is a huge problem.  It basically nullifies -- as for as this law -- Art III of the Constitution. Ever since Marberry v. Madison, the courts have been empowered to evaluate the constitutionality of the laws of this nation. This law seeks to deprive the Court of this, the most basic of all our protections. 
For example, no judicially ordered compensation?? The "takings" clause is written into the constitution!!
The authors of this bill obviously have no notion of the concept of American liberty.  |
Eminent domain is built into the Constitution, but this bill doesn't purport to grant authority to seize land for public use - it only grants authority to waive the requirements of NEPA and similar acts.
The reason for limiting judicial review is simple - SECDHS signs a D&F for an exemption, somebody sues and gets injuncitve relief on a claim of irreparable harm, and with a friendly judge and appeals panel, you can delay a project for five to ten years without even proving the underlying environmental harm.
The Congress has the authority to limit both the subject matter jurisdiction of the Supreme Court, and all inferior courts to it within the Federal judiciary. With the Supreme Court (the only one created by the Constitution, rather than Congress, the limiting authority is express:
"In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." - Article III, Section 2.
With respect to the rest of the Federal judiciary, the authority to limit review is implied in the enumerated powers of Article I, Section 8:
"To constitute Tribunals inferior to the supreme Court;"
Since Congress has the sole authority to create these courts, it has the implicit authority to define the scope of their subject matter and personal jurisdiction. It does that all the time, in many mundane ways - for one example, Federal diversity jurisdiction, which allows Federal courts to hear state law civil matters when all plaintiffs reside or do business in different states from all defendants. Formerly, the amount in controversy had to be $25,000, then it was raised to $50,000, then to $75,000.
Another area where Congress has done this repeatedly is in creating and defining the personal jurisdictions of the various Circuit Courts of Appeal.
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MichaeltheGreat
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Apolyton Grand Executioner
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mooning the house that Ruth built.
Oct 1999
time: 21:20
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quote:
Originally posted by Oerdin
quote:
Or how about a road realignment necessitated by that landowner's activity, such that your property loses major arterial road frontage which was part of the whole reason you invested in that ranch property years ago, knowing it was in the process of being rezoned industrial? |
You me some people speculated on the future value of realestate and lost? :shock: I'm amazed that could happen.
Seriously, they're speculators and they aren't assured anything. Some people gamble and lose; it sucks but they'll go on with their life. |
No, I mean that land use and planning laws exist for a reason. You mean if you buy a house, and I put a toxic waste processing facility next door, by getting a waiver on the laws (which still apply to you) that prevent that, sucks to be you, some animals are more equal than others, and oh, by the way, you still have to comply with the land use laws that don't apply to me?
You can still lose your ass speculating, either if the market goes south, or if there are changes implemented in the land use process. In the latter case, there are hearings, procedural rules, avenues of appeal and opportunities to lobby - look at the revision process for the Temecula Valley master plan for one local example, or the Murphy Canyon Gateway project for one even closer to home.
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Zkribbler
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Los Angeles, CA, USA
Feb 1999
time: 21:20
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 Oops. I misfocused on the new law. I thought it permitted the Secretary to waive all rights to compensation, even for the taking of private property. It don't. My bad. 
What it does do though is grant the Secretary the right to, in effect, repeal laws. That's an Article I power and shouldn't be willy nilly transferred to the Article II executive branch.
I feel the same way about Congress ceded the right to the President to, in effect, declare war, as they did with Bush in Iraq and with Johnson in Vietnam.
There's a reason the Founding Fathers created checks and balances. 
Nightmare scenario: Congress passes a law stating, "We hereby cede all our powers to the President of the United States & we're taking the rest of the year off . . . with pay. So long, suckers."
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11-05-2005 20:03
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