Risky Business: Barriers to Rationality in Congress

Jones, Rachel R.
May 2009
Ecology Law Quarterly;2009, Vol. 36 Issue 2, p467
Academic Journal
In Defenders of Wildlife v. Chertoff, the D.C. District Court upheld the constitutionality of an extraordinarily broad waiver provision in the REAL I.D. Act of 2005. That provision, section 102, allows the Secretary of Homeland Security to waive all laws he deems necessary to ensure expeditious construction of border fencing along the United States-Mexico border. While Defenders of Wildlife confirms the legality of waiver provisions like section 102, it also raises the interesting question of what drives legislative decision- making in the face of uncertainty. Behavioral science research shows that in the post-9/1 1 world, our ability to objectively perceive risk is altered by our knowledge of terrorist attacks and by our exposure to media coverage of the terrorist threat the United States faces. This diminished ability to objectively perceive risk can negatively affect the deliberative process when Congress must legislate around uncertain risks, like the risk of environmental harm and the risk of future terrorist attacks. I consider several options that might minimize the effect of this phenomenon on the crafting of legislation, including the creation of a standing risk assessment council, the inclusion of traditional waiver provision elements that limit the effects of potentially irrational legislative behavior, and drafting legislation that requires waiver-invoking officials to accurately characterize the risks to be considered.


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