The Law at the End of the Law

In Governing through Crime I trace the ways that the war on crime transformed American democracy long before 9/11 or George Bush's war on the Constitution, errr, I mean terror. With a vision of citizenship reduced to protection from violent crime, law makers in Congress and the state legislatures, have responded for thirty years with ever more generous helpings of executive discretion. To be sure that due process values did not resist this delegation, Congress has increasingly shackled the federal courts in their ability to question executive power in the field of crime.

In his Sidebar column in Tuesday's NYTimes, Adam Liptak provides a striking example of what one might call the law of the victim (Megan's Law, etc.), in this case, the ultimate crime law, the law to build a wall on the Mexican border. In what may be the most sweeping exemption from federal laws ever dealt in one act, Congress gave the Secretary of Homeland Security authority to suspend any federal law that interferes with the building of the wall.

While 9/11 is the usual culprit noted to explain these developments by both critics and apologists, the genetic markers of the war on crime are not far below the surface. Asked to defend this striking reduction in the protection of federal laws (including labor, environment, discrimination, etc.):

Mr. Chertoff explained the reasoning behind the law in a news release last week. “Criminal activity at the border,” he said, “does not stop for endless debate or protracted litigation.”