By Dinah Bear

In 2005, Congress passed the REAL ID Act that authorized the Secretary of the Department of Homeland Security to “waive all legal requirements…necessary to ensure expeditious construction” of barriers and roads at the U.S.-Mexico border.[1]  No Congressional hearings were held on this provision and the Congressional Research Service was unable to identify any similar provisions that had ever been previously passed by Congress.[2]

To date, 84 federal laws and all related state and local laws have been waived. Those waivers are still in effect today even though the Secretary of Homeland Security could rescind them at any time.

In each waiver, DHS has also waived all state or other laws, regulations and legal requirements related to the subject of the waived federal laws. This authority leaves communities, states, tribal governments, and citizens in a vast swath of the U.S. unprotected by the normal operation of law.

So what laws have been waived under this provision?  Federal laws waived for particular wall segments include laws intended to protect important places to Native Americans, the basic law typically ensuring citizens participation in various government action, laws intended to protect religious freedom, laws protecting the environment, national parks and monuments, national wildlife refuges and other public lands; all laws protecting archaeological and cultural sites, and even the laws intended to protect taxpayers in the course of contracting for construction of wall.

Eliminating compliance with these laws has significantly contributed to serious, and in some cases, irreversible, harm to the people, wildlife, water and lands of the Southwest.  Mountains have been blown apart, Native American burial sites have been disturbed and damaged, and migratory routes of wildlife like bear, bison and bighorn sheep have been blocked. Hydrological flows have been altered, causing floods that have damaged natural resources and structures.  Plant life has been destroyed including many saguaro cactus plants, which are revered by the Tohono O’odham Nation.  Recreational areas have been devastated.

Promoted to make Americans safer in a hurry, the waivers have instead quickly eliminated legal rights and protections that have secured Americans’ public health and well being for decades.


Write to President Joe Biden:

and Secretary of Homeland Security Alexander Mayorkas:  The Honorable Alejandro Mayorkas, Secretary of Homeland Security, Washington, DC 20528


[1] 8 USC § 1103 (note).

[2] Memorandum from Stephen R. Viña and Todd Tatelman, Cong. Research Service, February 9, 2005.