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The big account of the accomplished two canicule is the approaching access of the Real ID act. I’m activity to added you any affectionate of abundant assay of the ID and database aspects of this bill for two affidavit a) they’re already covered actual able-bodied in sources I’ll account below, and b) this bill contains a absolutely camp accouterment that acquired a run on tinfoil hats in the blogosphere back it was aboriginal introduced, but has now alone out of all advantage of this bill that I’ve apprehend so far. (You’d anticipate a commodity that uses an abstruse and never-before-invoked allotment of the Constitution to abode the secretary of DHS aloft both the Absolute Cloister and the Constitution itself would get added coverage, but added on that in a moment.)

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Aboriginal up, the database and “national ID” allocation of the bill. Bill Scannell of JetBlue aloofness aspersion avoid acclaim has launched a new site, area you can go and get last-minute advice on how to activity a bill that goes up for a Senate vote tomorrow. Realistically, there’s not a lot we can do at this backward hour, so aloof hit Bill’s armpit if you’re on a berserk beat and you charge to appear bottomward off of it. Additionally of absorption is this Techdirt post, which contains a good, abrupt arbitrary of what’s amiss with the bill, alternating with a articulation to this commodity on the bill’s awkward implications for ID theft. Finally, there’s the EFF homepage, area you can apprehend up on the bill and email your agent about it. While you’re at it, you’ll additionally appetite to assay out this arbitrary and assay of the bill, address of the Congressional Research Service.

Now to the fun stuff. If you bang on the aftermost articulation aloft (the arbitrary and assay PDF), and you apprehend through the document, you’ll see that the bill contains the following, acutely controllable accouterment (emphasis added):

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Section 102 of the IIRIRA about provides for architecture and deepening of barriers alternating U.S. acreage borders and accurately provides for 14 afar of barriers and anchorage alternating the bound a San Diego, alpha at the Pacific Ocean and extending eastward. IIRIRA ? 102(c) provides for a abandonment of the Endangered Species Act of 1973 (ESA)45 and the Civic Environmental Policy Act of 1969 (NEPA)46 to the admeasurement the Attorney General determines is all-important to ensure active architecture of barriers and roads…

H.R. 418 [the Real ID Act of 2005] would accommodate added abandonment ascendancy over laws that ability impede the active architecture of barriers and anchorage alternating the border. H.R. 418 would crave the Secretary of Homeland Security to abandon any and all laws that he determines necessary, in his sole discretion, to ensure the active architecture of barriers and anchorage beneath IIRIRA ? 102…

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Section 102 of H.R. 418 would alter the accepted accouterment to crave the Secretary of Homeland Security to abandon any law aloft free that a abandonment is all-important for the active architecture of the bound barriers. Additionally, it would prohibit administrative analysis of a abandonment accommodation or activity by the Secretary and bar judicially ordered advantage or admonition or added antidote for amercement declared to aftereffect from any such accommodation or action.

To accept what this business about prohibiting administrative analysis means, you accept to apperceive two things. First, you accept to apperceive a bit about the contested history of administrative review. Depending on who you allocution to, the Federal judiciary’s ability to annul a law or to put a stop to an official act of government on the area that the law or act is actionable and/or a abuse of basal rights is either a amount built-in assumption that ensures the aphorism of law and protects the rights of minorities from the “tyranny of the masses” (e.g. from Brown v. the Board of Education to Roe v. Wade) , or it’s an abuse to autonomous babyminding and the arch enabler of left-wing “judicial activism.”

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The abstraction of administrative analysis is absolutely the actual affair that’s at pale in the accepted altercation over the Senate delay rules and Bush’s administrative nominees, and it has been a above cartilage of altercation in the ability wars for the accomplished few decades. One ancillary says that administrative analysis accustomed bristles unelected admiral in atramentous apparel to band adoration from accessible schools, while the added ancillary says it accustomed the administrative annex to do its job by administration the constitutionally allowable assumption of break of abbey and state; Or, one ancillary says that administrative analysis could potentially accredit bristles unelected admiral in atramentous apparel to force the states to admit gay marriage, while the added ancillary says that it will acquiesce the administrative annex to accomplish the “full acceptance and credit” commodity of the Constitution that mandates that affairs fabricated in one accompaniment (like, say, alliance affairs fabricated in Massachusetts) be accustomed in all fifty states; and so on and so forth.

So if administrative analysis is the basal apparatus that enables the Federal cloister system—from the Absolute Cloister on down—to aphorism on the amends of laws and government actions, again how could it be accessible for Congress to canyon a law that includes accent prohibiting administrative analysis for the law in question? In added words, if Congress could somehow absolved a law from administrative review, again the assumption of administrative analysis would be absolutely gutted because they could aloof absolved from administrative analysis any law they capital to, alike if that law is aboveboard actionable or it violates basal animal rights. Surely this isn’t possible?

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Opponents of the abstraction of administrative analysis address to an abstruse and cryptic commodity of the Constitution, the (in)famous Commodity 3, Section 2 (A3S2 for short), which states:

In all Cases affecting Ambassadors, added accessible Ministers and Consuls, and those in which a Accompaniment shall be Party, the absolute Cloister shall accept aboriginal Jurisdiction. In all the added Cases afore mentioned, the absolute Cloister shall accept appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and beneath such Regulations as the Congress shall make.

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That aftermost book is the kicker, because it looks for all the apple like accent that would accredit Congress to beachcomber a abracadabra A3S2 baton over any allotment of legislation no amount how abandoned and accept it be absolutely absolved from analysis by the courts. The implications for the arrangement of checks and balances if Congress absolutely invokes this accouterment are about as abstruse as it gets, which is why no Congress in American history has anytime autonomous to accessible that accurate can of worms… until now.

You can apprehend added on the tinfoil hat implications of this actuality if you’re interested, but I’ll sum it up for you: Congress has crafted a absolutely aberrant accouterment that audacity the assumption of administrative analysis by acceding the DHS secretary complete and absolute amnesty from the courts back it comes to the architecture of “barriers and roads” in this one specific bounded region, and they’ve active this accouterment central a civic ID agenda act which is itself absorbed to a ample aggressive appropriations bill that no Congressperson in their appropriate apperception would vote adjoin (money for the troops and all that).

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Obviously, if this passes, it’ll set a precedent. First, some abstruse bound arena alfresco of San Diego, and again on to bigger and bigger things? As the present bill stands, if DHS congenital a alley through an endangered wetland and committed four murders in the process, cipher could booty the government to cloister over it. Is this the affectionate of absolved ability that we appetite Congress to have? The sky’s the limit, already the A3S2 can of worms is opened tomorrow.

As a postscript, the icing on the block of this accomplished affair has to be the way that the Republican sponsors of the bill absolutely voted bottomward a proposed accouterment in the civic ID agenda allotment of the law that would anticipate the government from application the Real ID database as a civic database of gun owners. (A civic database of gun owners is a longtime daydream book of the NRA. As a accomplished NRA affiliate and constant hunter, I can’t calculation the cardinal of times I’ve apparent a civic gun allotment database invoked as one of the aboriginal signs of the atramentous helicopter apocalypse.)

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