By DAVID McLEMORE / The Dallas Morning News

The U.S. Supreme Court may get a chance to join the fractious debate over building fencing along the U.S.-Mexico border.

A legal challenge by two environmental groups seeking to limit enhanced Department of Homeland Security powers to suspend more than 30 laws to build the fence is gathering support in Congress.

But at least one constitutional expert said that although the legal challenge underscores the broad array of powers Congress has delegated to Homeland Security, "environmentalists face an uphill battle."

"There is a legitimate legal gripe here, in that there are serious questions about how much power Congress can delegate to other branches of government," said Jonathan Turley, a constitutional law authority at George Washington University Law School.

Homeland Security Secretary Michael Chertoff announced the waiver of about three dozen environmental laws to expedite construction of the border fence in Texas and Arizona on April 1.

Fourteen House Democrats, including Homeland Security Chairman Bennie Thompson, D-Miss., and seven other committee chairmen then said they would file friend-of-the-court briefs asking the Supreme Court to take up the lawsuit on whether the department had overstepped constitutional limits.

"This blanket waiver of laws like the Clean Air Act and the Safe Drinking Water Act is a clear and disturbing abuse of the secretary's discretion," said U.S. Rep. John Dingell, D-Mich., chairman of the House Energy and Commerce committee. "Congress' efforts to seek justification for this waiver from DHS have been stonewalled, which leads me to believe none exists."

U.S. Rep. Pete Sessions, R-Dallas, disagrees, saying continued illegal immigration and violence is a greater "risk to good conservation policies."

"For far too long, the border fencing project has been hijacked by bureaucratic red-tape policies that fail to make our border any safer or cleaner," he said. "... I fully support Secretary Chertoff's decision to prioritize the security of our nation over procedural preferences and the rule of law over regulatory roadblocks."

Unlimited power

The most recent challenge by the environmental groups – the Sierra Club and Defenders of Wildlife – to Mr. Chertoff's power stems from their 2007 federal lawsuit alleging that Homeland Security's use of waivers violated the Constitution's separation of powers.

A federal court ruled against the groups in December, noting that Mr. Chertoff had done what Congress had given him the power to do. In March, the environmentalists filed a petition for writ of certiorari with the U.S. Supreme Court.

It was the only venue left. Thanks to a rider attached to the Real ID act enacted in 2005, Congress gave Homeland Security almost unlimited power to waive any laws necessary to build the fence.

Congress also denied oversight by federal appeals courts to any challenges, except for a request to the Supreme Court to review.

"We are pleased to see members of Congress getting involved in challenging this unconstitutional waiver authority," said Oliver Bernstein, spokesman for the Sierra Club. "And we would hope that action leading to revocation of the authority will help our case in the Supreme Court."

'Waiver happy'

In his announcement of the most recent waivers, Mr. Chertoff said that Homeland Security remains committed to environmental responsibility and that the agency "is neither compromising its commitment to responsible environmental stewardship nor its commitment to solicit and respond to the needs of state, local and tribal governments, other agencies of the federal government and local residents."

He stressed that his agency will continue to work closely with the Department of Interior and other federal and state resources management agencies to ensure that impact to the environment and cultural and historic artifacts is properly analyzed and minimized.

But the size and scope of the use of waivers to clear the path for construction of the border fence is virtually unprecedented, Dr. Turley said.

More troubling, he added, is the apparent dismissal of due process as "endless debate or protracted litigation."

Mr. Chertoff has said the waivers are necessary because "criminal activity at the border does not stop for endless debate or protracted litigation."

But Dr. Turley said Congress has in recent years "become almost waiver happy."

"They see it as a form of no-cost legislating," he said. "But there is no evidence Congress considered the implications of giving Homeland Security such broad waiver power."

There are indications that Congress may be trying to regain some of the authority it gave away.

Conservation bill

U.S. Rep. Raul Grijalva, D-Ariz., has written a bill known as the Borderlands Conservation and Security Act that would repeal the ability of DHS to waive health and environmental laws while including border protections.

And it's drawing support in Congress, including from U.S. Rep. Earl Blumenauer, D-Ore., and eight Texas members of Congress.

"It is unprecedented that a single person can be above the law without any judicial appeal or remedy," Mr. Blumenauer said. "And it is an absurd claim that he must waive the Safe Drinking Water Act and Clean Air Act, to name a few, in order to build this border fence."

Mr. Grijalva said he will hold hearings on the impact of the waivers April 28 at the University of Texas-Brownsville.

"My legislation does not impede or deny border security but it restores confidence in this government to uphold laws as it pursues security," he said.

Meanwhile, U.S. Sen. Jeff Bingaman D-N.M., sent letters asking Mr. Chertoff and Interior Secretary Dirk Kempthorne to justify the waivers.