Border Befuddlement

Today the Supreme Court said it won't hear a challenge to the fence the U.S. is building on the Mexican border. The challenge was based on the fact that the law providing for the building of the fence said the Department of Homeland Security could ignore environmental laws, which means the fence threatens various desert species and ecosystems.

I think the "ignore environmental laws" thing is unequivocally bad policy. And I'm sure the environmental side's lawyers had all kinds of interesting arcane legal arguments. But I find it hard to be very upset with the Supreme Court over this decision, because when it comes down to it, Congress has the power to re-write its own laws. Our Constitution was written in the 18th Century, so there's no "right to a clean environment" in it, much less rights for nature in and of itself. All of our environmental protections are established by Congress, and what Congress giveth, Congress can taketh away. The property-rights-based challenges that are working their way up may have more ground to stand on (since while the Founders may have been too early for John Muir, they knew all about John Locke), and may be better politics to boot -- a property-based challenge takes the progressive concerns about militarized border enforcement and environmental protection and marries them to a core conservative concern with protecting private property, through the less politically marked medium of preserving border-area communities and economies.

I find it a little strange, then, to hear Democratic members of Congress complaining about the outcome of this case. They can blame Republicans for passing the bad law in 2005. But the Democrats have controlled Congress since the beginning of 2007 -- so they have the power to introduce a bill that would change the bad law. They could tack it onto something like an Iraq funding bill or wiretapping authorization that they were going to pass anyway and that Bush wouldn't dare veto.

I also find this statement by DHS secretary Michael Chertoff depressing:

"We have had multiple meetings with some of the most bitter critics, people that we have talked to again and again," he told the Houston Chronicle's Editorial Board on June 6. "Now consultation means we try to see if we can work out an accommodation. It doesn't mean we consult for two years, it doesn't mean that a local official has a veto."

I've spent a lot of time reading research on collaboration and consultation in policymaking. And the lesson that gets hammered home again and again is that if the agency treats it as a one-way flow of information -- an opportunity to convince the public that the agency's decisions (which they'll carry out regardless of the results of the consultation) are right -- then the whole thing is a charade. And this lesson is more important the more politically charged the issue is.