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Authority to Enforce the Immigration and Nationality Act (INA) in the Wake of the Homeland Security Act: Legal Issues [July 16, 2003]
"For decades, the administrative authority to interpret, implement, enforce, and adjudicate immigration law within the U.S. lay almost exclusively with one officer: the Attorney General. The most general statement of this power was found in §103(a)(1) of the Immigration and Nationality Act of 1952 (INA), the statute that comprehensively regulates immigration law in the United States. With the transfer of nearly all immigration functions to the Department of Homeland Security on March 1, 2003, however, §103(a)(1) of the INA has necessarily required various modifications to clarify the respective authorities newly obtained by the Secretary of Homeland Security and retained by the Attorney General. Accordingly, §103(a)(1) of the INA has been amended twice, and now places primary responsibility for enforcing and administering immigration law in the United States with the Secretary of Homeland Security. Section 103(a)(1) as amended, however, still apparently allows the Attorney General to retain a significant amount of authority to enforce, administer, and interpret immigration law. The extent of the Attorney General's authority has become highly contentious in the wake of several events, including (1) the enforcement of immigration laws by the DOJ's Federal Bureau of Investigation even after all immigration enforcement functions were effectively removed from the DOJ, (2) DOJ's issuance of immigration-related regulations on February 28, 2002, the day before the abolishment of the Immigration and Naturalization Service, and (3) the Attorney General's ruling in In re D-J-, Respondent. Considerable cooperation between the two Departments in addition to congressional measures to clarify the INA, such as the Homeland Security Technical Corrections Act of 2003 (H.R. 1416), may be in order to resolve the complexities presented by the substantial transformation."
Library of Congress. Congressional Research Service
Viña, Stephen R.
2003-07-16
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U.S. Visitor and Immigrant Status Indicator Technology Program (US-VISIT) [Updated February 23, 2005]
"Tracking the entry and exit of most foreign nationals at U.S. ports of entry is not a small undertaking. In FY2003 there were over 427 million inspections conducted at U.S. ports of entry, of which 62% were foreign nationals from other countries. Moreover, implementing the requirements of an automated entry and exit data system is not without controversy. Some observers fear that the full implementation of USVISIT will cause massive delays at U.S. ports of entry, primarily at land ports of entry. Some believe that the cost of implementing such a system would outweigh the benefits. Others express concern about the inadequacy of current infrastructure, and the lack of consensus with respect to the type of biometric technology that should be used in travel documents. Many continue to question the purpose of such a system. Some argue that resources should be directed at immigration interior enforcement, rather than on an expensive system whose capability is not fully known. The automated entry and exit data system was administratively renamed the United States Visitor and Immigrant Status Indicator Technology (US-VISIT). It is reportedly going to be implemented in phases over the next several years. While the 9/11 Commission generally endorsed the US-VISIT Program, it recommended accelerated implementation, as well as several enhancements to the program. This report will be updated to reflect new developments."
Library of Congress. Congressional Research Service
Seghetti, Lisa M.; Viña, Stephen R.
2005-02-23
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Border Security: Apprehensions of 'Other Than Mexican' Aliens [September 22, 2005]
From the Document: "The United States Border Patrol (USBP) within the Department of Homeland Security (DHS) is charged with securing our nations borders between official ports of entry (POE). As the USBP discharges its mission it encounters unauthorized aliens from around the world attempting to illegally enter the United States. In fiscal year (FY) 2004, USBP agents apprehended 1.16 million people attempting to enter the country illegally between official POE; 93% of these aliens were Mexican nationals. Because the vast majority of people apprehended each year by the USBP are Mexican nationals, the agency categorizes aliens as Mexicans or Other Than Mexicans (OTM). Over the past three years, OTM apprehensions have more than tripled nationwide and have been concentrated along the South Texas border. The reasons for this dramatic increase, and its geographical concentration in Texas, are not altogether clear."
Library of Congress. Congressional Research Service
Siskin, Alison; Nunez-Neto, Blas; Viña, Stephen R.
2005-09-22
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Enforcing Immigration Law: Issues of Complexity [July 28, 2005]
"Pursuant to your request, this memorandum provides numerous examples that describe some of the reported challenges that officers of the Department of Homeland Security's (DHS) immigration-related bureaus face in furtherance of their missions. In particular, we provide quotes from, and observations made in, case law, testimony, literature, and other sources that seem to illustrate the complexity of the missions of these bureaus and the underlying laws that these officers are charged with enforcing. While there are several immigration-related bureaus at DHS and a number of laws enforced by such bureaus, this memorandum focuses on enforcement operations at the border (i.e., namely those carried out by the Bureau of Customs and Border Protection) and the immigration-related duties that stem from the Immigration and Nationality Act (INA; 8 U.S.C. 1101 et seq.)."
Library of Congress. Congressional Research Service
Viña, Stephen R.
2005-07-28
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State's 'Declaration of Emergency' for Border Security Purposes: Selected Issues of Federal Assistance [August 19, 2005]
"Pursuant to your request, this memorandum discusses the implications (under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.) hereafter referred to as the 'Stafford Act') of the recent 'state of emergency' announcements by the Governors of Arizona and New Mexico due to border security concerns. In particular, this memorandum focuses on (1) whether border security concerns may qualify as an emergency under the Stafford Act, and if so, (2) the availability and type of federal assistance under the Stafford Act for such an emergency. This memorandum also discusses some of the possible roles that the Department of Homeland Security (DHS) may play in aiding the states of Arizona and New Mexico."
Library of Congress. Congressional Research Service
Viña, Stephen R.
2005-08-19
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Civilian Patrols Along the Border: Legal and Policy Issues [April 7, 2006]
"Civilian patrols along the international border have existed in a wide variety of forms for at least a hundred and fifty years. Over the past fifteen years, civilian border patrol groups appear to have proliferated along the U.S.-Mexico border, partly due to the increasing numbers of aliens entering the country illegally. In the spring of 2005, attention focused on these civilian patrols, when the 'Minuteman Project' mobilized hundreds of volunteers along the Arizona-Mexico border to observe and report the movement of illegal aliens to the U.S. Border Patrol. Although some participants were armed, Minutemen volunteers were instructed not to engage in hostile confrontations with any illegal alien. Organizers of the Minuteman Project have expanded the Project to the other southwestern border states and Canada and have split the mission into a border defense corps and an internal vigilance operation that monitors businesses and government. A new nationwide Minuteman Project began in April 2006."
Library of Congress. Congressional Research Service
Nunez-Neto, Blas; Weir, Alyssa Bartlett; Viña, Stephen R.
2006-04-07
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Enforcing Immigration Law: The Role of State and Local Law Enforcement [March 11, 2004]
From the Document: "Since the September 11, 2001 terrorist attacks, the enforcement of our nation's immigration laws has received a significant amount of attention. Some observers contend that the federal government does not have adequate resources to enforce immigration law and that state and local law enforcement entities should be utilized. Several proposals introduced in the 108th Congress, such as the Clear Law Enforcement for Criminal Alien Removal Act of 2003 (CLEAR Act; H.R. 2671) and the Homeland Security Enhancement Act of 2003 (S. 1906) would enhance the role of state and local officials in the enforcement of immigration law. This proposed shift has prompted many to question what role state and local law enforcement agencies should have in the enforcement of immigration law, if any. This report examines some of the policy and legal issues that may accompany the increasing role of state and local law officials in the enforcement of immigration law. The discussion is limited to the role of state and local law enforcement in the investigation, arrest, and detention of immigration law violators. This report will be updated as warranted."
Library of Congress. Congressional Research Service
Ester, Karma; Seghetti, Lisa M.; Viña, Stephen R.
2004-03-11
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U.S. Visitor and Immigrant Status Indicator Technology Program (US-VISIT) [Updated February 18, 2004]
"Congress first mandated that the former Immigration and Naturalization Service (INS) implement an automated entry and exit data system that would track the arrival and departure of every alien. The objective was, in part, to develop a mechanism that would be able to track nonimmigrants who overstayed their visas as part of a broader emphasis on immigration control. Following the September 11, 2001 terrorist attacks there was a shift in priority for implementing the system. While the tracking of nonimmigrants who overstayed their visas remained an important goal, border security has become the paramount concern. Following the terrorist attacks, provisions in the USA PATRIOT Act and the Enhanced Border Security and Visa Reform Act of 2002 encouraged a more expeditious development of the system and directed that biometric identifiers be used in passports, visas and other travel documents. The Border Security Act requires all U.S. ports of entry to have equipment and software installed that will allow biometric comparison and the authentication of all visas and other travel and entry documents by October 26, 2004. Moreover, implementing the requirements of an automated entry and exit data system is not without controversy. The automated entry and exit data system was administratively renamed the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) Program by the Department of Homeland Security (DHS). It is reportedly going to be implemented in phases over the next several years and include resources and services from a number of federal, state, local, and foreign entities."
Library of Congress. Congressional Research Service
Seghetti, Lisa M.; Viña, Stephen R.
2004-02-18
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Border Security: Inspections Practices, Policies, and Issues [Updated October 13, 2004]
"The United States now has a unified inspections operation at the borders; a single inspector is charged with examining people, animals, plants, goods, and cargo upon entry to the country. The transfer of these functions to the Department of Homeland Security (DHS) marks a significant policy shift for all of these functions, clarifying that -- although there are important commercial, economic, health, humanitarian, and immigration responsibilities -- ensuring the security of our borders is the top priority. The decision by DHS officials to further integrate the inspection duties so that there is 'one face at the border' now means that Customs and Border Protection (CBP) inspectors are essentially interchangeable and responsible for all primary inspections. A range of legal, administrative, and policy issues have emerged with unified border inspections. The bills implementing the 9/11 Commission recommendations (S. 2845, H.R. 10, S. 2774/H.R. 5040 and H.R. 5024) have various provisions affecting border inspections."
Library of Congress. Congressional Research Service
Wasem, Ruth Ellen; Monke, James; Viña, Stephen R.
2004-10-13
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Enforcing Immigration Law: The Role of State and Local Law Enforcement [Updated October 13, 2005]
"Since the September 11, 2001 terrorist attacks, the enforcement of our nation's immigration laws has received a significant amount of attention. Some observers contend that the federal government does not have adequate resources to enforce immigration law and that state and local law enforcement entities should be utilized. Several proposals introduced in the 109th Congress would enhance the role of state and local officials in the enforcement of immigration law, including the Save America Comprehensive Immigration Act of 2005 (H.R. 2092); Clear Law Enforcement for Criminal Alien Removal Act of 2005 (H.R. 3137); Homeland Security Enhancement Act of 2005 (S. 1362); Comprehensive Enforcement and Immigration Reform Act of 2005; Rewarding Employers that Abide by the Law and Guaranteeing Uniform Enforcement to Stop Terrorism Act of 2005 (H.R. 3333); Scott Gardner Act (H.R. 3776); and the Enforcement First Immigration Reform Act of 2005 (H.R. 3938). This proposed shift has prompted many to question what role state and local law enforcement agencies should have in the enforcement of immigration law, if any. Congress defined our nation's immigration laws in the Immigration and Nationality Act (INA) (8 U.S.C. §§1101 et seq.), which contains both criminal and civil enforcement measures. Historically, the authority for state and local law enforcement officials to enforce immigration law has been construed to be limited to the criminal provisions of the INA; by contrast, the enforcement of the civil provisions, which includes apprehension and removal of deportable aliens, has strictly been viewed as a federal responsibility, with states playing an incidental supporting role."
Library of Congress. Congressional Research Service
Ester, Karma; Seghetti, Lisa M.; Viña, Stephen R.
2005-10-13
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Enforcing Immigration Law: The Role of State and Local Law Enforcement [Updated May 4, 2006]
From the Document: "Since the September 11, 2001, terrorist attacks, the enforcement of our nation's immigration laws has received a significant amount of attention. Some observers contend that the federal government does not have adequate resources to enforce immigration law and that state and local law enforcement entities should be utilized. Several proposals introduced in the 109th Congress would enhance the role of state and local officials in the enforcement of immigration law, including H.R. 4437, S. 2612, S. 2454, H.R. 2092, H.R. 3137, S. 1362, S. 1438, H.R. 3333, H.R. 3776, and H.R. 3938. This proposed shift has prompted many to question what role state and local law enforcement agencies should have in the enforcement of immigration law, if any."
Library of Congress. Congressional Research Service
Ester, Karma; Seghetti, Lisa M.; Viña, Stephen R.
2006-05-04
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Border Security: Barriers Along the U.S. International Border [Updated September 21, 2006]
"Congress has been considering expanding the barriers currently deployed along the U.S. international land border. Currently, the United States Border Patrol (USBP) deploys fencing, which aims to impede the illegal entry of individuals, and vehicle barriers, which aim to impede the illegal entry of vehicles (but not individuals) along the border. The USBP first began erecting barriers in 1990 to deter illegal entries and drug smuggling in its San Diego sector. The ensuing 14 mile-long San Diego 'primary fence' formed part of the USBP's 'Prevention Through Deterrence' strategy, which called for reducing unauthorized migration by placing agents and resources directly on the border along population centers in order to deter would-be migrants from entering the country. In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act which gave the Attorney General (now Secretary of the Department of Homeland Security) broad authority to construct barriers along the border. In 2005,Congress passed the REAL ID Act which authorized the Secretary of the Department of Homeland Security (DHS) to waive all legal requirements in order to expedite the construction of border barriers. A number of policy issues concerning border barriers generally and fencing specifically may be of interest to Congress, including, but not limited to: their effectiveness; their costs versus their benefits; their location; their design; and their potential diplomatic ramifications. Prominent bills include House-passed H.R. 4437 and H.R. 6061, and Senate-passed S. 2611, and H.R. 5631. This report will be updated periodically as needed."
Library of Congress. Congressional Research Service
Nunez-Neto, Blas; Viña, Stephen R.
2006-09-21
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Border Security and Military Support: Legal Authorizations and Restrictions [Updated October 23, 2006]
From the Document: "The military generally provides support to law enforcement and immigration authorities along the southern border. Reported escalations in criminal activity and illegal immigration, however, have prompted some lawmakers to reevaluate the extent and type of military support that occurs in the border region. On May 15, 2006, President Bush announced that up to 6,000 National Guard troops would be sent to the border to support the Border Patrol. Addressing domestic laws and activities with the military, however, might run afoul of the Posse Comitatus Act, which prohibits use of the armed forces to perform the tasks of civilian law enforcement unless explicitly authorized. There are alternative legal authorities for deploying the National Guard, and the precise scope of permitted activities and funds may vary with the authority exercised."
Library of Congress. Congressional Research Service
Viña, Stephen R.
2006-10-23
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Border Security: Barriers Along the U.S. International Border [Updated December 12, 2006]
"Congress has been considering expanding the barriers currently deployed along the U.S. international land border. Currently, the United States Border Patrol (USBP) deploys fencing, which aims to impede the illegal entry of individuals, and vehicle barriers, which aim to impede the illegal entry of vehicles (but not individuals) along the border. While the San Diego fence, combined with an increase in agents and other resources in the USBP's San Diego sector, has proven effective in reducing the number of apprehensions made in that sector, there is considerable evidence that the flow of illegal immigration has adapted to this enforcement posture and has shifted to the more remote areas of the Arizona desert. A number of policy issues concerning border barriers generally and fencing specifically may be of interest to Congress, including, but not limited, to their effectiveness, costs versus benefits, location, design, environmental impact, potential diplomatic ramifications, and the costs of acquiring the land needed for construction."
Library of Congress. Congressional Research Service
Nunez-Neto, Blas; Viña, Stephen R.
2006-12-12
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Civilian Patrols Along the Border: Legal and Policy Issues [Updated October 23, 2006]
"Civilian patrols along the international border have existed in a wide variety of forms for at least a hundred and fifty years. Over the past fifteen years, civilian border patrol groups appear to have proliferated along the U.S.-Mexico border, partly due to the increasing numbers of aliens entering the country illegally. In the spring of 2005, attention focused on these civilian patrols, when the 'Minuteman Project' mobilized hundreds of volunteers along the Arizona-Mexico border to observe and report the movement of illegal aliens to the U.S. Border Patrol. Although some participants were armed, Minutemen volunteers were instructed not to engage in hostile confrontations with any illegal alien. Organizers of the Minuteman Project have expanded the Project to the other southwestern border states and Canada and have split the mission into a border defense corps and an internal vigilance operation that monitors businesses and government. A new nationwide Minuteman Project began in April 2006."
Library of Congress. Congressional Research Service
Nunez-Neto, Blas; Weir, Alyssa Bartlett; Viña, Stephen R.
2006-10-23
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Border Security: Fences Along the U.S. International Border [Updated January 11, 2006]
"At the end of the first session of the 109th Congress, the House passed the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 (H.R. 4437), which contains language that would require the Secretary of the Department of Homeland Security (DHS) to construct at least two layers of reinforced fencing along much of the nation's southwest international land border. Earlier, the 109th Congress passed provisions to facilitate the completion of a three-tiered, 14-mile fence, along the border near San Diego in the REAL ID Act of 2005 (H.R. 418), which was subsequently added to H.R. 1268, the Emergency Supplemental Appropriations Act, and signed into law on May 11, 2005 (P.L. 109-13). The new provisions allow the Secretary of DHS to waive all legal requirements determined necessary to ensure expeditious construction of authorized barriers and roads. In September of 2005, the Secretary announced that he was using this authority to waive a number of mostly environmental and conservation laws. This report outlines the issues involved with DHS's completion of the San Diego border fence and highlights some of the major legislative and administrative developments regarding the construction of new border fences. This report will be updated as warranted."
Library of Congress. Congressional Research Service
Nunez-Neto, Blas; Viña, Stephen R.
2006-01-11
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Border Security and Military Support: Legal Authorizations and Restrictions [May 15, 2006]
From the Document: "The military generally provides support to law enforcement and immigration authorities along the southern border. Reported escalations in violence and illegal immigration, however, have prompted some lawmakers to reevaluate the extent and type of military support that occurs in the border region. President Bush has reportedly announced an interest in sending National Guard troops to support the Border Patrol. Addressing domestic laws and activities with the military, however, might run afoul of the Posse Comitatus Act, which prohibits use of the armed forces to perform the tasks of civilian law enforcement unless explicitly authorized. There are alternative legal authorities for deploying the National Guard, and the precise scope of permitted activities and funds may vary with the authority exercised. This report will be updated as warranted."
Library of Congress. Congressional Research Service
Viña, Stephen R.
2006-05-15
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Border Security and Military Support: Legal Authorizations and Restrictions [May 23, 2006]
"The military generally provides 'support' to law enforcement and immigration authorities along the southern border. Reported escalations in criminal activity and illegal immigration, however, have prompted some lawmakers to reevaluate the extent and type of military support that occurs in the border region. On May 15, 2006, President Bush announced that up to 6,000 National Guard troops would be sent to the border to support the Border Patrol. Addressing domestic laws and activities with the military, however, might run afoul of the Posse Comitatus Act, which prohibits use of the armed forces to perform the tasks of civilian law enforcement unless explicitly authorized. There are alternative legal authorities for deploying the National Guard, and the precise scope of permitted activities and funds may vary with the authority exercised. This report will be updated as warranted."
Library of Congress. Congressional Research Service
Viña, Stephen R.
2006-05-23
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Border Security and Military Support: Legal Authorizations and Restrictions [July 26, 2006]
From the Document: "The military generally provides 'support' to law enforcement and immigration authorities along the southern border. Reported escalations in criminal activity and illegal immigration, however, have prompted some lawmakers to reevaluate the extent and type of military support that occurs in the border region. On May 15, 2006, President Bush announced that up to 6,000 National Guard troops would be sent to the border to support the Border Patrol. Addressing domestic laws and activities with the military, however, might run afoul of the Posse Comitatus Act, which prohibits use of the armed forces to perform the tasks of civilian law enforcement unless explicitly authorized. There are alternative legal authorities for deploying the National Guard, and the precise scope of permitted activities and funds may vary with the authority exercised. This report will be updated as warranted."
Library of Congress. Congressional Research Service
Viña, Stephen R.
2006-07-26
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Homeland Security: Scope of the Secretary's Reorganization Authority [Updated August 9, 2005]
"In July of 2005, the Secretary of Homeland Security announced a major reorganization of the Department. While many of the proposed changes may be effectuated administratively, some might require legislative action due to limits on reorganization authority under the Homeland Security Act of 2002 (P.L. 107-296). Section 872 of the Homeland Security Act gives the Secretary of Homeland Security the authority to reorganize 'functions' and 'organizational units' within the Department either: (1) independently, 60 days after the Secretary provides notice of such an action to the appropriate congressional committees, or (2) through the President's submission of a reorganization plan. The Secretary, however, may not abolish agencies, entities, organizational units, or functions established or required to be maintained by statute. This report examines the scope of the reorganization authority provided in §872 with a focus on (1) the Secretary's independent authority to reorganize the Department and (2) what is meant by the term 'organizational units,' the basic administrative structures that the Secretary is empowered to 'establish, consolidate, alter, or discontinue.' This report will be updated as warranted."
Library of Congress. Congressional Research Service
Viña, Stephen R.
2005-08-09
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Border Security and Military Support: Legal Authorizations and Restrictions [updated May 23, 2006]
From the Document: "The military generally provides support to law enforcement and immigration authorities along the southern border. Reported escalations in criminal activity and illegal immigration, however, have prompted some lawmakers to reevaluate the extent and type of military support that occurs in the border region. On May 15, 2006, President Bush announced that up to 6,000 National Guard troops would be sent to the border to support the Border Patrol. Addressing domestic laws and activities with the military, however, might run afoul of the Posse Comitatus Act, which prohibits use of the armed forces to perform the tasks of civilian law enforcement unless explicitly authorized. There are alternative legal authorities for deploying the National Guard, and the precise scope of permitted activities and funds may vary with the authority exercised. This report will be updated as warranted."
Library of Congress. Congressional Research Service
Viña, Stephen R.
2006-05-23
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Enforcing Immigration Law: The Role of State and Local Law Enforcement [Updated August 14, 2006]
From the Document: "Since the September 11, 2001, terrorist attacks, the enforcement of our nation's immigration laws has received a significant amount of attention. Some observers contend that the federal government does not have adequate resources to enforce immigration law and that state and local law enforcement entities should be utilized. Several proposals introduced in the 109th Congress would enhance the role of state and local officials in the enforcement of immigration law, including H.R. [House Resolution] 4437, S. 2612, S. 2454, H.R. 2092, H.R. 3137, S. 1362, S. 1438, H.R. 3333, H.R. 3776, H.R. 3938, S. 2611, and H.R. 1817. This proposed shift has prompted many to question what role state and local law enforcement agencies should have in the enforcement of immigration law, if any. [...] This report examines some of the policy and legal issues that may accompany the increasing role of state and local law officials in the enforcement of immigration law. This report will be updated as warranted."
Library of Congress. Congressional Research Service
Viña, Stephen R.; Seghetti, Lisa M.; Ester, Karma
2006-08-14
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Farm Product 'Check-off' Programs: A Constitutional Analysis [Updated June 9, 2006]
"For decades, Congress has enacted laws authorizing generic promotion programs for a number of farm products to increase overall demand and consumption of the agricultural product. These generic promotion programs, commonly known as 'check-off' programs, are funded through the payment of mandatory assessments imposed on the amount of product that a covered party sells, produces, or imports. […] The Supreme Court has ruled on the constitutionality of check-off programs three times in the last eight years, the most recent of which occurred in May 2005. The Court's first two attempts at addressing First Amendment challenges to check-off programs resulted in contrasting outcomes and some confusion for lower courts. In 'Johanns v. Livestock Marketing Association', the Supreme Court's third and most recent decision concerning a check-off program (beef), the Court ruled that the generic advertising under the program was the government's own speech, and was therefore not susceptible to the First Amendment challenge before it. The Supreme Court's decision was based on grounds that had not been previously addressed by the Court in the earlier check-off cases and may have far-reaching effects. […] This report begins with a brief introduction to check-off programs and then describes many of the First Amendment principles that have been discussed in check-off cases. Next is an analysis of the first two challenges that reached the Supreme Court, as well as a brief discussion of subsequent lower court decisions. This report concludes with a discussion of 'Johanns v. Livestock Marketing Association' and its possible implications for check-off programs."
Library of Congress. Congressional Research Service
Viña, Stephen R.
2006-06-09
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Border Security: Fences Along the U.S. International Border [Updated May 9, 2005]
"This report outlines the issues involved with the Department of Homeland Security's (DHS's) completion of a three-tiered, 14-mile fence, along the border near San Diego, California. The state of California has delayed completion of the fence due primarily to legal and policy conflicts with its federally-approved, state-run Coastal Management Program. Current authorization for the fence only allows the waiver of the Endangered Species Act and the National Environmental Policy Act. During the 108th Congress proposals were introduced that would have allowed the department to waive a number of other environmental, conservation, and cultural laws and requirements to varying degrees. In the 109th Congress, H.R. 1268 would allow the Secretary of DHS to waive all legal requirements deemed necessary. This report will be updated as warranted."
Library of Congress. Congressional Research Service
Viña, Stephen R.; Nunez-Neto, Blas
2005-05-09
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Private Testing of Mad Cow Disease: Legal Issues [Updated June 16, 2006]
"The positive identification of bovine spongiform encephalopathy or BSE, commonly known as 'mad cow disease,' in a Washington State cow in December of 2003 sparked a number of reactions from the federal government, the meat industry, and close to forty countries world-wide. The U.S. Department of Agriculture (USDA), for example, launched an extensive BSE sampling and surveillance program designed to test as many high-risk cattle as possible with the assistance of designated state and university diagnostic laboratories across the country. USDA implemented the new program in June of 2004, and uses USDA approved 'rapid' immunologic test kits. Most countries, however, quickly banned the importation of United States beef following the announcement. In an effort to meet new consumer demand, some private slaughterers propose to test 100% of their cattle using USDA approved 'rapid test' kits. For example, Creekstone Farms Premium Beef, a private specialty producer and processor of Black Angus Beef, sought approval from the USDA to conduct voluntary BSE rapid testing for all the cattle it processes in order to promote sales, especially exports. The USDA, however, rejected Creekstone's request primarily because the test had only been licensed for animal health 'surveillance' purposes and 'the test as proposed by Creekstone would have implied a consumer safety aspect that is not scientifically warranted.'"
Library of Congress. Congressional Research Service
Viña, Stephen R.
2006-06-16
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Private Testing of Mad Cow Disease: Legal Issues [Updated October 3, 2006]
"The positive identification of bovine spongiform encephalopathy or BSE, commonly known as "mad cow disease," in a Washington State cow in December of 2003 sparked a number of reactions from the federal government, the meat industry, and close to forty countries world-wide. The U.S. Department of Agriculture (USDA), for example, launched an extensive BSE sampling and surveillance program designed to test more high-risk cattle with the assistance of designated state and university diagnostic laboratories across the country. USDA implemented the new program in June of 2004, and uses USDA-approved "rapid" immunologic test kits. Most countries, however, quickly banned the importation of United States beef following the announcement. In an effort to meet new consumer demand, some private slaughterers propose to test 100% of their cattle using USDA approved "rapid test" kits. For example, Creekstone Farms Premium Beef, a private specialty producer and processor of Black Angus Beef, sought approval from the USDA to conduct voluntary BSE rapid testing for all the cattle it processes in order to promote sales, especially exports. The USDA, however, rejected Creekstone's request primarily because the test had only been licensed for animal health "surveillance" purposes and "the test as proposed by Creekstone would have implied a consumer safety aspect that is not scientifically warranted."
Library of Congress. Congressional Research Service
Viña, Stephen R.
2006-10-03
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Protecting Our Perimeter: 'Border Searches' under the Fourth Amendment [Updated May 14, 2003]
"Many border security initiatives were developed after the events of September 11, 2001. Because security initiatives often maintain a search and seizure component, Fourth Amendment implications may arise. The Fourth Amendment establishes that a search or seizure conducted by a governmental agent must be reasonable, and that probable cause support any judicially granted warrant. An invalid 'search' is an infringement of an expectation of privacy that society is prepared to consider reasonable. A 'seizure' of a person occurs when a government official makes an individual reasonably believe that he or she is not at liberty to ignore the governments presence in view of all the circumstances surrounding the incident. The Court has interpreted the Fourth Amendment to include a presumptive warrant requirement on all searches and seizures conducted by the government, and has ruled that any violations of this standard will result in the suppression of any information derived therefrom [sic]. The Court, however, has also recognized situations that render the obtainment of a warrant impractical or against the public's interest, and has accordingly crafted various exceptions to the warrant and probable cause requirements of the Fourth Amendment."
Library of Congress. Congressional Research Service
Viña, Stephen R.
2003-05-14
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Protecting Our Perimeter: 'Border Searches' under the Fourth Amendment [Updated May 17, 2005]
"Many border security initiatives were developed after the events of September 11, 2001. Because security initiatives often maintain a search and seizure component, Fourth Amendment implications may arise. The Fourth Amendment establishes that a search or seizure conducted by a governmental agent must be reasonable, and that probable cause support any judicially granted warrant. An invalid 'search' is an infringement of an expectation of privacy that society is prepared to consider reasonable. A 'seizure' of a person occurs when a government official makes an individual reasonably believe that he or she is not at liberty to ignore the government's presence in view of all the circumstances surrounding the incident. The Court has interpreted the Fourth Amendment to include a presumptive warrant requirement on all searches and seizures conducted by the government, and has ruled that any violations of this standard will result in the suppression of any information derived therefrom. The Court, however, has also recognized situations that render the obtainment of a warrant impractical or against the public's interest, and has accordingly crafted various exceptions to the warrant and probable cause requirements of the Fourth Amendment."
Library of Congress. Congressional Research Service
Viña, Stephen R.
2005-05-17
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Protecting Our Perimeter: 'Border Searches' under the Fourth Amendment [Updated January 21, 2005]
"This report addresses the scope of the government's authority to search and seize individuals at the border pursuant to the constitutional framework that encompasses the border search exception to the warrant and probable cause requirements of the Fourth Amendment. This report also describes the varying levels of suspicion generally associated with each type of border search as interpreted by the courts. In addition, this report highlights some of the border security recommendations made by the 9/11 Commission, legislative actions taken in the 108th Congress, and possible considerations for the 109th Congress. This report does not address interior searches and seizures performed by immigration personnel since they are not traditional 'border searches' in the Court's view. This report will be updated as warranted."
Library of Congress. Congressional Research Service
Viña, Stephen R.
2005-01-21
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Private Testing of Mad Cow Disease: Legal Issues [June 1, 2004]
"Creekstone Farms Premium Beef, a private specialty producer and processor of Black Angus Beef, sought approval from the USDA to conduct voluntary BSE (bovine spongiform encephalopathy) rapid testing for all the cattle it processes in order to promote sales, especially exports. The USDA, however, rejected Creekstone's request primarily because the test had only been licensed for animal health 'surveillance' purposes and 'the test as proposed by Creekstone would have implied a consumer safety aspect that is not scientifically warranted.' The USDA's rejection of Creekstone's request to privately test all of its cattle for BSE has ignited a significant amount of debate among lawmakers and segments of the beef industry. At issue is whether the USDA's decision to reject Creekstone's request to test all of its animals for BSE was a valid agency action. This report analyzes the legal authority of the USDA's Animal and Plant Health Protection Service to regulate all testing for BSE, particularly the voluntary testing of 100% of a private company's animals with rapid test kits. This analysis also discusses the USDA's recent rejection of Creekstone's application to test all of the cattle it processes for BSE."
Library of Congress. Congressional Research Service
Viña, Stephen R.
2004-06-01
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