Petition for Writ of Certiorari — Animal Legal Defense Fund, et al., Petitioners v. Department of Homeland Security, et al.
Supreme Court briefAug 23, 2018
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No. 18IN THE
Supreme Court of the United States
_______________________________
ANIMAL LEGAL DEFENSE FUND, DEFENDERS OF
WILDLIFE, AND CENTER FOR BIOLOGICAL DIVERSITY,
Petitioners,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL.,
Respondents.
_______________________________
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF CALIFORNIA
_______________________________
PETITION FOR A WRIT OF CERTIORARI
_______________________________
Anthony T. Eliseuson
Monte Cooper
ANIMAL LEGAL
Counsel of Record
DEFENSE FUND
Elizabeth R. Moulton
150 South Wacker Drive ORRICK, HERRINGTON &
Suite 2400
SUTCLIFFE LLP
Chicago, IL 60606
1000 Marsh Road
Menlo Park, CA 94025
Brian Segee
(650) 614-7375
Brendan Cummings
mcooper@orrick.com
Jean Su
CENTER FOR
Jason Rylander
BIOLOGICAL DIVERSITY DEFENDERS OF WILDLIFE
660 South Figueroa
1130 17th Street NW
Street
Washington, DC 20036
Los Angeles, CA 90017
Counsel for Petitioners
i
QUESTION PRESENTED
Section 102(c) of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (“IIRIRA”),
(8 U.S.C. § 1103 note), gives the Secretary of Homeland Security the authority to “waive all legal requirements”—including laws governing the Secretary’s
own conduct—that “in such Secretary’s sole discretion” would impede “expeditious construction” of barriers along the U.S.-Mexico border. Section 102(c)
further prohibits any judicial review—whether federal or state—of the Secretary’s waiver decisions for
failure to comply with statutory standards. Id.
§ 102(c)(2). The statute permits only constitutional
challenges, with appellate review available only via a
writ of certiorari to this Court. Id.
This action presents a constitutional challenge to
the Secretary’s decisions waiving dozens of federal
laws, and all state and local legal requirements related to them, in connection with the construction, replacement, and upkeep of barriers (including
prototype barriers) along specified portions of the border with Mexico.
The question presented is:
Whether IIRIRA § 102(c)—which grants the Secretary of Homeland Security sweeping power to waive
any or all legal requirements in her sole discretion,
and then insulates that exercise of discretion from judicial review—violates the separation of powers.
ii
PARTIES TO THE PROCEEDING AND
CORPORATE DISCLOSURE STATEMENT
Petitioners Animal Legal Defense Fund, Defenders of Wildlife, and Center for Biological Diversity
state that they are not a subsidiary or affiliate of a
publicly owned corporation.
Respondents are U.S. Department of Homeland
Security, U.S. Customs and Border Protection,
Kirstjen Nielsen, in her official capacity as Secretary
of the U.S. Department of Homeland Security, Kevin
K. McAleenan, in his official capacity as Commissioner of U.S. Customs and Border Protection, and
United States of America.
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ........................................ i
PARTIES TO THE PROCEEDING AND
CORPORATE DISCLOSURE
STATEMENT ..................................................... ii
TABLE OF AUTHORITIES .................................... vi
OPINIONS AND ORDERS BELOW ........................ 1
JURISDICTION ........................................................ 1
STATUTORY PROVISIONS INVOLVED ............... 1
STATEMENT ............................................................ 4
Congress delegates to the DHS Secretary
broad authority to construct “barriers
and roads” along the border, authorizes
the Secretary to waive any applicable
legal requirements, and restricts
judicial review to constitutional claims
and appellate review to certiorari. ............... 4
The President orders DHS to obtain
complete operational control of the
southern border and the Secretary
broadly waives all applicable federal,
state, and local laws relating to three
border wall projects. ...................................... 7
Petitioners sue the government alleging
constitutional violations related to the
statutory waiver authority and to the
Secretary’s San Diego and Calexico
Waivers. ....................................................... 10
iv
The district court grants summary
judgment for the government and
upholds the challenged waiver
decisions against constitutional attack. ..... 11
REASONS FOR GRANTING THE WRIT.............. 14
I.
This Court Should Resolve Whether
Section 102’s Sweeping Waiver Authority
Violates The Separation Of Powers. ................ 14
A. Section 102(c) gives the Secretary
sweeping and unprecedented power to
waive any and all legal requirements,
in violation of the nondelegation
doctrine. ....................................................... 15
B. A Section 102(c) waiver is a partial
repeal of enacted law in violation of the
Presentment and Take Care Clauses. ........ 24
C. Section 102(c)’s jurisdiction-stripping
provision insulates the Executive from
judicial review and further aggravates
the separation of powers violation. ............ 29
II. The Question Presented Is Important And
Recurring, And The Impossibility Of A
Circuit Conflict Highlights The Need For
This Court’s Review.......................................... 31
III. This Case Is An Ideal Vehicle To Address
The Question Presented. .................................. 33
CONCLUSION ........................................................ 34
v
APPENDIX A
Judgment of the United States District Court for the
Southern District of California
(March 26, 2018) .......................................................1a
APPENDIX B
Opinion of the United States District Court for the
Southern District of California
(February 27, 2018) ...................................................3a
APPENDIX C
U.S. Const. art. I, §§ 1, 7 .......................................109a
U.S. Const. art. II, § 3 ...........................................110a
APPENDIX D
8 U.S.C. § 1103 note ..............................................112a
APPENDIX E
Determination Pursuant to Section 102 of the Illegal
Immigration Reform and Immigrant Responsibility
Act of 1996, as Amended (September 12, 2017)
(“Calexico Waiver”) ...............................................117a
APPENDIX F
Determination Pursuant to Section 102 of the Illegal
Immigration Reform and Immigrant Responsibility
Act of 1996, as Amended (August 2, 2017)
(“San Diego Waiver”).............................................124a
TABLE OF AUTHORITIES
Page(s)
Cases
A.L.A. Schechter Poultry Corp. v.
United States,
295 U.S. 495 (1935) ........................................15, 30
Am. Power & Light Co. v. SEC,
329 U.S. 90 (1946) .................................... 15, 29, 30
Bowen v. Mich. Acad. of Family
Physicians,
476 U.S. 667 (1986) ..............................................29
Buckley v. Valeo,
424 U.S. 96 (1976) ................................................14
Camreta v. Greene,
563 U.S. 692 (2011) ..............................................32
Clinton v. City of New York,
524 U.S. 417 (1998) .......... 12, 23, 24, 25, 26, 27, 32
Cty. of El Paso v. Napolitano,
557 U.S. 915 (2009) ..............................................33
Ctr. For Biological Diversity v. U.S.
Dep’t of Homeland Sec.,
No. 18-cv-655 (D.D.C. March 22,
2018) ......................................................... 32, 33, 34
Defenders of Wildlife v. Chertoff,
554 U.S. 918 (2008) ..............................................33
vii
Free Enter. Fund v. Pub. Co. Accounting
Oversight Bd.,
561 U.S. 477 (2010) ..............................................32
Gundy v. United States,
No. 17-6086 (U.S. Sept. 20, 2017) ..... 23, 24, 32, 34
INS v. Chadha,
462 U.S. 919 (1983) ............................ 15, 25, 26, 32
J.W. Hampton, Jr., & Co. v.
United States,
276 U.S. 394 (1928) ..............................................15
Leedom v. Kyne,
358 U.S. 184 (1958) ..............................................13
Marshall Field & Co. v. Clark,
143 U.S. 649 (1892) ..............................................15
Metro. Washington Airports Auth. v.
Citizens for Abatement of Aircraft
Noise,
501 U.S. 252 (1991) ..............................................32
Mistretta v. United States,
488 U.S. 361 (1989) ................ 15, 16, 17, 18, 30, 32
In re Nat’l Sec. Agency Telecomms.
Records Litig.,
671 F.3d 881 (9th Cir. 2011)................................27
Panama Refining Co. v. Ryan,
293 U.S. 388 (1935) ........................................16, 18
viii
Tenn. Valley Auth. v. Hill,
437 U.S. 153 (1978) ..............................................28
Touby v. United States,
500 U.S. 160 (1991) ........................................17, 30
Trump v. Hawaii,
138 S. Ct. 2392 (2018)..........................................23
U.S. ex rel. Knauff v. Shaughnessy,
338 U.S. 537 (1950) ..............................................23
United States v. Texas,
136 S. Ct. 906 (2016)............................................11
Watters v. Wachovia Bank, N.A.,
550 U.S. 1 (2007) ..................................................22
Whitman v. Am. Trucking Assn’s,
531 U.S. 457 (2001) ............................ 15, 16, 17, 23
Yakus v. United States,
321 U.S. 414 (1944) ..............................................30
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) ........................................14, 23
Constitutional Provisions
U.S. Const. art. I, § 1..................................... 10, 11, 24
U.S. Const. art. I, § 7..................................... 11, 12, 24
U.S. Const. art. II, § 1 ...............................................11
U.S. Const. art. II, § 3 ............................. 11, 13, 24, 28
ix
Statutes
10 U.S.C. § 1107(a)....................................................19
16 U.S.C. § 668(a)......................................................24
16 U.S.C. § 1540(b)....................................................24
22 U.S.C. § 2375(d)....................................................19
29 U.S.C. § 793 ..........................................................19
42 U.S.C. § 6212(b)....................................................19
42 U.S.C. § 6393(a)(2) ...............................................19
50 U.S.C. § 2426(e) ....................................................19
Administrative Procedure Act, 5 U.S.C.
§ 551 et seq. .......................................... 8, 19, 28, 30
American Indian Religious Freedom
Act, 42 U.S.C. § 1996 .......................................8, 20
Clean Air Act, 42 U.S.C. § 7401 et seq. ....................20
Clean Water Act, 33 U.S.C. § 1251 et
seq.........................................................................20
Coastal Zone Management Act, Pub. L.
No. 92-583, 16 U.S.C. § 1451 et seq. .....................9
Dep’t of Homeland Security
Appropriations Act, 2008, Pub. L.
No. 110-161, Div. E, Title V § 564,
121 Stat. 2042 ........................................................6
x
Eagle Protection Act, 16 U.S.C. § 668 et
seq.........................................................................20
Endangered Species Act of 1973, 16
U.S.C. § 1531 et seq. ...................... 8, 13, 19, 20, 28
Farmland Protection Policy Act, 7
U.S.C. § 4201 et seq. ............................................20
Federal Land Policy and Management
Act, Pub. L. No. 94-579, 43 U.S.C.
§ 1701 et seq. ........................................................20
Fish and Wildlife Coordination Act,
Pub. L. No. 73-121, 16 U.S.C. § 661
et seq. ...................................................................20
Homeland Security Act of 2002, Pub. L.
No. 107-296, 116 Stat. 2135. .................................5
Illegal Immigration Reform and
Immigrant Responsibility Act of
1996 § 102 .............. 1, 12, 13, 14, 17, 18, 23, 31, 34
Illegal Immigration Reform and
Immigrant Responsibility Act of
1996 § 102(a) ........................................ 4, 25, 31, 33
Illegal Immigration Reform and
Immigrant Responsibility Act of
1996 § 102(b) ........ 6, 7, 8, 11, 13, 24, 25, 26, 31, 33
Illegal Immigration Reform and
Immigrant Responsibility Act of
1996 § 102(b)(1)......................................................5
xi
Illegal Immigration Reform and
Immigrant Responsibility Act of
1996 § 102(b)(1)(C) ...............................................21
Illegal Immigration Reform and
Immigrant Responsibility Act of
1996 § 102(c) ......................... 5, 6, 8, 10, 12, 16, 18,
19, 20, 21, 24, 25, 27, 28, 29, 31, 32, 33
Illegal Immigration Reform and
Immigrant Responsibility Act of
1996 § 102(c)(1) ........................................ 16, 22, 27
Illegal Immigration Reform and
Immigrant Responsibility Act of
1996 § 102(c)(2)(A) .......................................5, 6, 29
Illegal Immigration Reform and
Immigrant Responsibility Act of
1996 § 102(c)(2)(B) .................................................6
Illegal Immigration Reform and
Immigrant Responsibility Act of
1996 § 102(c)(2)(C) .......................................1, 6, 29
Line Item Veto Act, Pub. L. No. 104130, 110 Stat. 1200, 2 U.S.C. § 691 ...............26, 27
Migratory Bird Conservation Act, 16
U.S.C. § 715 et seq. ..............................................20
National Environmental Policy Act of
1969, Pub. L. No. 91-190, 83 Stat.
852, 42 U.S.C. § 4321 et seq. ............... 8, 13, 19, 28
xii
National Historic Preservation Act,
Pub. L. No. 89-665, 80 Stat. 915 .........................20
Native American Graves Protection and
Repatriation Act, 25 U.S.C. § 3001 et
seq.........................................................................20
Paleontological Resources Preservation
Act, 16 U.S.C. § 470aaa et seq.......................20, 21
REAL ID Act of 2005, Pub. L. No. 10913 Div. B, Title I § 102, 119 Stat.
231 ..........................................................................5
Religious Freedom Restoration Act, 42
U.S.C. § 2000bb ....................................................20
Secure Fence Act of 2006, Pub. L. No.
109-367, § 3, 120 Stat. 2638
§ 102(b)(1)(A)..........................................................6
Sex Offender Registration and
Notification Act’s, 42 U.S.C. § 16913 ..................24
Trans-Alaskan Pipeline Authorization
Act, 43 U.S.C. § 1652(d) .......................................29
Other Authorities
70 Fed. Reg. 55622-02 (Sept. 22, 2005) ......................7
72 Fed. Reg. 2535-01 (Jan. 19, 2007) .........................7
72 Fed. Reg. 60870-01 (Oct. 26, 2007) ........................7
73 Fed. Reg. 19077-01 (Apr. 8, 2008) .........................7
xiii
73 Fed. Reg. 19078-01 (Apr. 8, 2008) .........................7
151 Cong. Rec. H466 (daily ed. Feb. 9,
2005) ...............................................................21, 22
Robert J. Delahunty & John C. Yoo,
Dream on: The Obama
Administration’s Nonenforcement of
Immigration Laws, the Dream Act,
and the Take Care Clause, 91 Tex. L.
Rev. 781 (2013) ....................................................28
Exec. Order No. 13767, 82 Fed. Reg.
8793 (Jan. 25, 2017) .........................................7, 34
The Federalist No. 47 (James Madison)
(Clinton Rossiter ed., 1961) .................................14
Memorandum from Stephen R. Viña &
Todd Tatelman, Legislative
Attorneys, Am. Law Division, Cong.
Research Serv. on Section 102 of
H.R. 418, Waiver of Laws Necessary
for Improvement of Barriers at
Borders (Feb. 9, 2005)....................................18, 19
J. Moore et al., Moore’s Federal Practice
§ 134.02 (3d ed. 2011) ..........................................32
S. Rep. No. 79-752 (1945) ..........................................30
Mitchell J. Widener, The Presentment
Clause Meets The Suspension Power:
The Affordable Care Act’s Long And
Winding Road To Implementation,
24 B.U. Pub. Int. L.J. 109 (2015) ........................25
OPINIONS AND ORDERS BELOW 1
The opinion of the district court is reported at 284
F. Supp. 3d 1092. Pet. App. 3a-108a.
JURISDICTION
The district court entered final judgment on
March 26, 2018. Pet. App. 1a-2a. On May 10, 2018 (for
Petitioners Animal Legal Defense Fund and Defenders of Wildlife) and May 18, 2018 (for Petitioner Center for Biological Diversity), Justice Kennedy
extended the time within which to file a petition for a
writ of certiorari to and including August 23, 2018.
The jurisdiction of this Court is invoked under 8
U.S.C. § 1103(c)(2)(C) note: “An … order of the district
court may be reviewed only upon petition for a writ of
certiorari to the Supreme Court of the United States.”
STATUTORY PROVISIONS INVOLVED
Section 102 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, 8 U.S.C. § 1103
note, reproduced below and at Pet. App. 112a-116a,
provides in relevant part:
(a) In General. — The Secretary of Homeland Security shall take such actions as may
be necessary to install additional physical
barriers and roads (including the removal of
obstacles to detection of illegal entrants) in
1 The appendix to this petition is cited as “Pet. App. __.” The
United States District Court for the Southern District of California’s docket No. 17-cv-1215-GPV(WVG) pleadings are cited as
“Dkt. __.”
2
the vicinity of the United States border to
deter illegal crossings in areas of high illegal
entry into the United States.
(b) Construction of Fencing and Road
Improvements Along the Border. —
(1) Additional fencing along southwest
border. —
(A) Reinforced fencing. — In carrying out
subsection (a), the Secretary of Homeland
Security shall construct reinforced fencing
along not less than 700 miles of the southwest border where fencing would be most
practical and effective and provide for the installation of additional physical barriers,
roads, lighting, cameras, and sensors to gain
operational control of the southwest border.
(B) Priority areas. — In carrying out this
section, [amending this section], the Secretary of Homeland Security shall—
(i) identify the 370 miles, or other mileage
determined by the Secretary, whose authority to determine other mileage shall expire
on December 31, 2008, along the southwest
border where fencing would be most practical and effective in deterring smugglers and
aliens attempting to gain illegal entry into
the United States; and
3
(ii) not later than December 31, 2008, complete construction of reinforced fencing
along the miles identified under clause (i).
…
(c) Waiver. —
(1) In general. — Notwithstanding any
other provision of law, the Secretary of
Homeland Security shall have the authority
to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious
construction of the barriers and roads under
this section. [amending this section]. Any
such decision by the Secretary shall be effective upon being published in the Federal
Register.
(2) Federal court review. —
(A) In general. — The district courts of the
United States shall have exclusive jurisdiction to hear all causes or claims arising from
any action undertaken, or any decision
made, by the Secretary of Homeland Security pursuant to paragraph (1). A cause of action or claim may only be brought alleging a
violation of the Constitution of the United
States. The court shall not have jurisdiction
to hear any claim not specified in this subparagraph.
4
(B) Time for filing of complaint. — Any
cause or claim brought pursuant to subparagraph (A) shall be filed not later than 60
days after the date of the action or decision
made by the Secretary of Homeland Security. A claim shall be barred unless it is filed
within the time specified.
(C) Ability to seek appellate review. —
An interlocutory or final judgment, decree,
or order of the district court may be reviewed
only upon petition for a writ of certiorari to
the Supreme Court of the United States.
Additional pertinent constitutional and statutory
provisions are reproduced in the appendix to this petition. See Pet. App. 109a-116a.
STATEMENT
Congress delegates to the DHS Secretary
broad authority to construct “barriers and
roads” along the border, authorizes the Secretary to waive any applicable legal requirements,
and restricts judicial review to constitutional
claims and appellate review to certiorari.
In 1996, Congress enacted § 102 of the IIRIRA “to
deter illegal crossings in areas of high illegal entry
into the United States.” Pub. L. No. 104-208, div. C,
tit. I, § 102(a), 110 Stat. 3009, 3009-554. The initial
version of § 102 empowered the Attorney General to
construct reinforcement fences “along the 14 miles of
the international land border of the United States,
5
starting at the Pacific Ocean and extending eastward,” i.e., in the vicinity of San Diego, California. Id.
§ 102(b)(1). To effectuate that mandate, Congress authorized the Attorney General to “waive[]” “provisions
of” two statutes, “the Endangered Species Act of 1973
[“ESA”] and the National Environmental Policy Act of
1969 [“NEPA”] … to the extent … necessary to ensure
expeditious construction of the barriers and roads under this section.” Id. § 102(c). The Homeland Security
Act of 2002 transferred responsibility for construction
of the border barriers from the Attorney General to
the Secretary of the newly created Department of
Homeland Security (“DHS”). Pub. L. No. 107-296, 116
Stat. 2135.
Three years later, to speed completion of the fence
near San Diego, Congress dramatically expanded the
Secretary’s power under § 102(c) to waive any applicable law, authorizing “waive[r of] all legal requirements such Secretary, in such Secretary’s sole
discretion, determines necessary to ensure expeditious construction of the barriers and roads under this
section.” REAL ID Act of 2005, Pub. L. No. 109-13,
Div. B, Title I § 102, 119 Stat. 231, 302, 306 (emphasis
added).
In addition to amending § 102(c) to delegate
sweeping waiver authority to the Secretary, the 2005
amendment also largely insulated that authority
from judicial review by sharply restricting the scope
of any challenge to the Secretary’s waiver determinations. First, the REAL ID Act ousted jurisdiction from
state courts and gave the federal district courts “exclusive jurisdiction to hear all causes or claims arising
from” the Secretary’s waiver decisions. Id.
6
§ 102(c)(2)(A). Second, Congress limited challenges
“only” to those “alleging a violation of the Constitution
of the United States.” Id. Third, those constitutional
challenges must be filed not later than 60 days after
the
Secretary’s
waiver
determination.
Id.
§ 102(c)(2)(B). Fourth and finally, Congress eliminated ordinary appellate review in the courts of appeals and provided for review of the district court only
by way of a petition for a writ of certiorari to this
Court. Id. § 102(c)(2)(C); see also Pet. App. 7a. The
2005 amendment left unchanged IIRIRA Section
102(b)’s focus on the San Diego fence.
Congress acted in 2006 and 2008 to further address DHS’s authority with respect to border barriers
and roads. In 2006, Congress expanded the scope of
Section 102(b) beyond the initial 14-mile San Diego
fence construction to “at least 2 layers of reinforced
fencing [and] the installation of additional physical
barriers, roads, lighting, cameras, and sensors” in five
specific segments along the southwest border totaling
approximately 850 miles, including two “priority areas” with construction deadlines of May 30, 2008, and
December 31, 2008. Secure Fence Act of 2006, Pub. L.
No. 109-367, § 3, 120 Stat. 2638, 2639
§ 102(b)(1)(A)(i)-(v). And in 2008, Congress again
amended Section 102(b), authorizing the Secretary to
“construct reinforced fencing along not less than 700
miles of the southwest border.” Dep’t of Homeland Security Appropriations Act, 2008, Pub. L. No. 110-161,
Div. E, Title V § 564, 121 Stat. 2042, 2090,
§ 102(b)(1)(A)-(B).
From 1996 to 2016, the Section 102(c) waiver authority was used five times and was last invoked in
7
2008. See 73 Fed. Reg. 19078-01 (Apr. 8, 2008); 73
Fed. Reg. 19077-01 (Apr. 8, 2008); 72 Fed. Reg. 6087001 (Oct. 26, 2007); 72 Fed. Reg. 2535-01 (Jan. 19,
2007); 70 Fed. Reg. 55622-02 (Sept. 22, 2005). Although cumulatively those waivers pertained to projects encompassing hundreds of miles along the U.S.Mexico border, they all purported to apply to projects
specifically encompassed within § 102(b). See Pet.
App. 41a-43a.
The President orders DHS to obtain complete
operational control of the southern border and
the Secretary broadly waives all applicable federal, state, and local laws relating to three border wall projects.
On January 25, 2017, in one of his first official
acts, President Trump issued an Executive Order authorizing the Secretary of DHS to take steps to “obtain complete operational control, as determined by
the Secretary, of the southern border.” Pet. App. 13a.
Those steps include, as relevant here, to “immediately
plan, design, and construct a physical wall along the
southern border.” Id. “Wall” is defined by the President’s Executive Order as “a contiguous, physical wall
or other similarly secure, contiguous, and impassable
physical barrier.” Exec. Order No. 13767 § 3(e), 82
Fed. Reg. 8793 (Jan. 25, 2017).
Exercising the authority granted by E.O.
No. 13767, the Secretary of DHS issued two determinations invoking the broad waiver authority under
8
§ 102(c) and authorizing three border wall construction projects. 2 The first Determination, dated August
2, 2017 (“San Diego Waiver”), Pet. App. 124a-131a,
authorizes construction of 15 miles of replacement
fencing near San Diego, plus construction of prototype
border walls, and waives application of more than
thirty laws ranging from the National Environmental
Policy Act of 1969 (“NEPA”) (42 U.S.C. § 4321 et seq.),
and the Endangered Species Act (“ESA”) (16 U.S.C.
§ 1531 et seq.), to the entirety of the Administrative
Procedure Act (“APA”) (5 U.S.C. § 551 et seq.), and
the American Indian Religious Freedom Act (42
U.S.C. § 1996)—along with all state and local laws
“related to the subject” of the listed statutes. Pet. App.
14a-15a, 98a-99a, 129a-130a.
The second Determination, dated September 12,
2017 (“Calexico Waiver”), Pet. App. 117a-123a, also
waives application of a slew of federal and state laws,
this time with respect to the construction of replacement fencing “along an approximately three mile segment of the border that starts at the Calexico West
Land Port of entry and extends westward.” Pet. App.
15a. Calexico is a border city in California, located
about 120 miles east of San Diego, and about 60 miles
west of Yuma, Arizona. The San Diego and Calexico
Waivers are the first § 102(c) waivers to address border barriers not “limited to the mandates of section
102(b).” See Pet. App. 42a-43a.
2 Then-Secretary John F. Kelly issued the first waiver. Acting Secretary Elaine Duke issued the second waiver.
9
The environmental impact of the projects authorized by the San Diego and Calexico Waivers is substantial. The border walls are within, or in close
proximity to, the habitats of rare animal and plant
species including the burrowing owl, Quino checkerspot butterfly, Tecate cypress, snowy plover, two
species of fairy shrimp, and the Otay Mesa mint. See,
e.g., Dkt. 28-1 at 38; Dkt. 33-3 at 3. A portion of the
area covered by the San Diego Waiver is located
within California’s coastal zone, which the California
Coastal Commission regulates under the Coastal
Zone Management Act (Pub. L. No. 92-583 (16 U.S.C.
§ 1451 et seq.) (“CZMA”)) to ensure that coastal uses
and resources are properly protected. Dkt. 30-9. The
Secretary waived all requirements of the CZMA in the
San Diego Waiver. Pet. App. 124a-131a. This area
also includes the Tijuana River National Estuarine
Research Reserve, which is designated as a “Wetland
of International Importance” under the 1971 International Convention on Wetlands. The Tijuana River estuary is one of only two intact estuaries in California,
and it provides productive marsh habitat for a range
of invertebrates, fish, birds, and plants. Dkt. 30-9 at
¶ 6.
Construction and maintenance of the San Diego
Waiver projects and the Calexico Waiver project remain ongoing. Contracts for the prototype border wall
project—authorized by the San Diego Waiver—were
awarded in August and September of 2017, construction began in September, and the prototypes were
completed in October 2017. Pet. App. 15a. Construction of the 15 miles of replacement fencing authorized
by the San Diego Waiver began in June 2018. Con-
10
struction of the three miles of replacement fencing authorized by the Calexico Waiver began in February
2018, and is expected to continue into the fall. Pet.
App. 15a. Even after initial construction of the barriers is complete, the waivers will continue to apply to
ongoing upkeep. See Pet. App. 117a-131a.
Petitioners sue the government alleging constitutional violations related to the statutory
waiver authority and to the Secretary’s San Diego and Calexico Waivers.
Petitioners Center for Biological Diversity (“Center”), Defenders of Wildlife (“Defenders”), and the Animal
Legal
Defense
Fund
(“ALDF”)
are
environmental conservation and animal protection
organizations dedicated to ensuring that wildlife- and
wildland-protection statutes are properly enforced
and that the constitutional principles enabling those
laws to be carried out are properly respected. Dkt. 16
¶¶ 11-20. Members of the Petitioner organizations
regularly visit the project areas to observe the rare
and imperiled species that inhabit them. See, e.g.,
Dkt. 28-1 at 38.
In September 2017, Petitioners filed complaints
in district court challenging as unconstitutional the
statutory conferral of waiver authority and the San
Diego and Calexico waiver determinations. The complaints alleged, among other things, that Congress’
delegation in § 102(c) of authority to waive “all legal
requirements” inhibiting expeditious construction of
the border wall and its restrictions on judicial review
violate the separation of powers as implemented
through the nondelegation doctrine under Article I,
11
Section 1 and Article II, Section 1 of the U.S. Constitution, the Presentment Clause under Article I, Section 7, and the Take Care Clause under Article II,
Section 3. Petitioners alleged that the Secretary’s San
Diego and Calexico Waivers were legally invalid and
were also ultra vires because the border projects at
issue exceed the scope of § 102(b).
The district court grants summary judgment
for the government and upholds the challenged
waiver decisions against constitutional attack.
The district court resolved this case on summary
judgment, rejecting, as relevant here, Petitioners’
nondelegation, Presentment Clause, and Take Care
Clause arguments. The district court held that there
was no unconstitutional delegation because § 102 furnishes the Secretary with an “intelligible principle”
for exercising the delegated waiver authority. Pet.
App. 73a-81a. The district court further concluded
that the Presentment Clause was not violated because the waivers are “narrow” and in keeping with
congressional intent. Pet. App. 94-95a. The district
court agreed that the Take Care Clause applies to Executive officers and not just to the President, Pet.
App. 86a-87a, citing United States v. Texas, 136 S. Ct.
906 (2016) (order granting cert.), but held that the
Secretary’s waivers were “plausibly called for by an
act of Congress” and therefore did not violate the Take
Care Clause. See Pet. App. 89a-90a.
With respect to the nondelegation issues, the district court focused on the first and third factors of the
intelligible principle test—whether the statute pro-
12
vides both a general policy and boundaries for the exercise of the delegated authority. The court determined the “‘general policy’ of section 102 [to be]
deterrence of illegal crossings through construction of
additional physical barriers to improve U.S. border
protection.” Pet. App. 76a (quoting 8 U.S.C. § 1103
note). The court acknowledged that “section 102(c)
contains considerably fewer details than other challenged statutes” that have withstood nondelegation
scrutiny. Pet. App. 78a. Nevertheless, the court concluded that § 102(c) articulates a sufficient
“boundar[y] that limit[s] the Secretary’s authority to
waive all laws that are ‘necessary to ensure expeditious construction of the barriers and roads.’” Pet.
App. 77a-78a.
As to the Presentment Clause, after reviewing
Clinton v. City of New York, 524 U.S. 417 (1998), the
court determined that § 102(c)’s broad authorization
to waive any and all legal requirements is “narrow in
scope and only for the purpose of building border barriers something that is permitted by section 102(c).”
Pet. App. 94a. Notwithstanding that the waivers at
issue have been employed to undertake border wall
projects not originally conceived of by the IIRIRA and
to effectuate a partial repeal of a host of federal and
state statutes, the district court concluded there was
no Presentment Clause violation. In the court’s view,
the waived “statutes largely retain legal force and effect because the § 102(c) waivers only disturb the
waived statutes for a specific purpose and for a specific time.” Id.
13
The district court likewise rejected the arguments
based on the Take Care Clause. Pet. App. 85a-90a. Petitioner Center had urged that the San Diego Waiver
was not authorized by § 102(b) and that the Secretary
violated multiple laws, including NEPA and the ESA,
in undertaking the underlying border projects. Dkt.
28-1 at 31-32. The district court rejected the government’s contention that the Secretary was not bound
by the Take Care Clause. Pet. App. 87a. The court
concluded, however, that “the challenged steps taken
by the Secretary are ones that are plausibly called for
by an act of Congress” and thus did not violate the
Take Care Clause. Pet. App. 89a-90a.
The district court also reviewed Petitioners’ ultra
vires claim. After determining that the court could
consider whether the Secretary’s acts were ultra
vires, Pet. App. 23a-25a, the court concluded that
nothing in IIRIRA § 102 places a “clear and mandatory” limit on the Secretary’s waiver authority, and so
the waivers cannot be the basis for an ultra vires
claim. Pet. App. 36a-64a; Leedom v. Kyne, 358 U.S.
184, 188 (1958). 3
3 Petitioners appealed the district court’s ruling on the ultra
vires claim to the Ninth Circuit. See Ctr. for Biological Diversity,
et al. v. U.S. Dep’t. Homeland Sec., et al., Nos. 18-55474, -55475,
-55476. The Court of Appeals heard oral argument on August 7,
2018, and its decision is pending.
14
REASONS FOR GRANTING THE WRIT
I.
This Court Should Resolve Whether
Section 102’s Sweeping Waiver Authority
Violates The Separation Of Powers.
The Constitution establishes a tripartite system
of government that separates power among the three
coordinate branches—Legislative, Executive, and Judicial. That separation of powers “diffuses power the
better to secure liberty.” Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J.,
concurring). This Court carefully guards the Constitution’s separation of powers, as “[t]he accumulation
of all powers, legislative, executive, and judiciary, in
the same hands may justly be pronounced the very
definition of tyranny.” The Federalist No. 47, at 301
(James Madison) (Clinton Rossiter ed., 1961). “The
Framers regarded the checks and balances … they …
built into the … Federal Government as a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the
other.” Buckley v. Valeo, 424 U.S. 96, 122 (1976). Section 102’s waiver and jurisdiction-stripping provisions unconstitutionally consolidate the power to
make, enforce, and review laws in the Executive
branch. Infra § I.A. Section 102 effectively allows an
unelected Cabinet Secretary to repeal existing laws,
infra § I.B., and then shields the repeals from judicial
review, infra § I.C. This Court’s intervention is warranted to review Congress’ extraordinary conferral of
waiver authority that fundamentally distorts the allocation of power in our tripartite system of government.
15
A. Section 102(c) gives the Secretary
sweeping and unprecedented power to
waive any and all legal requirements, in
violation of the nondelegation doctrine.
1. “Congress is not permitted to abdicate or to
transfer to others the essential legislative functions
with which it is thus vested.” A.L.A. Schechter Poultry
Corp. v. United States, 295 U.S. 495, 529 (1935). The
nondelegation doctrine prevents Congress from
circumventing the Constitution’s “single, finely
wrought and exhaustively considered, procedure” for
enacting laws. INS v. Chadha, 462 U.S. 919, 951
(1983). Congress may, however, “obtain[] the
assistance of its coordinate Branches” if it lays “‘down
by legislative act an intelligible principle to which the
person or body authorized to exercise the delegated
authority is directed to conform.’” Mistretta v. United
States, 488 U.S. 361, 372 (1989) (brackets omitted)
(quoting J.W. Hampton, Jr., & Co. v. United States,
276 U.S. 394, 409 (1928)).
Under the intelligible principle test, a
Congressional
delegation
of
authority
is
constitutional only if it “clearly delineates [1] the
general policy, [2] the public agency which is to apply
it, and [3] the boundaries of th[e] delegated
authority.” Mistretta, 488 U.S. at 372-73 (quoting Am.
Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946)).
This framework safeguards against Congress
delegating its authority to an agency to decide “what
[the law] shall be,” by requiring clear instructions as
to both the ends and the means. Mistretta, 488 U.S.
at 418 (quoting Marshall Field & Co. v. Clark, 143
U.S. 649, 693-94 (1892)). “[T]he degree of agency
16
discretion that is acceptable varies according to the
scope of the power congressionally conferred.”
Whitman v. Am. Trucking Assn’s, 531 U.S. 457, 475
(2001).
2. Section 102(c) lacks any proper intelligible
principle that could sufficiently guide the Secretary’s
waiver discretion.
Under this provision, the Secretary has unguided
and unfettered discretion to “waive all legal
requirements such Secretary, in [his or her] sole
discretion,
determines
necessary
to
ensure
expeditious construction of the barriers and roads
under this section.” 8 U.S.C. § 1103(c)(1) note. The
IIRIRA contains no further principles guiding the
Secretary’s waiver discretion. This sweeping conferral
of authority is reminiscent of prior unconstitutional
delegations, and its scope extends far beyond that of
prior delegations that have survived constitutional
scrutiny. See Panama Refining Co. v. Ryan, 293 U.S.
388, 418 (1935) (“Congress left the matter to the
President without standard or rule, to be dealt with
as he pleased”.)
A study in contrasts, the delegation in Mistretta
(involving the Sentencing Guidelines) was upheld because Congress there provided two sets of seven and
eleven factors to “guide the Commission in its formulation” of offense and defendant categories, 488 U.S.
at 375, and it provided explicit limits on the range of
minimum and maximum sentences, id. The Commission’s discretion was limited by numerous constraints, including the grade of the offense, the nature
and degree of harm, and the offender’s age, education,
17
or mental and emotional condition. Id. at 374-76. In
Touby v. United States, 500 U.S. 160, 163 (1991), involving the Controlled Substance Act, the operative
language was “necessary to avoid an imminent hazard to the public safety.” There, the delegated authority was not the power to repeal whole laws, but merely
the authority to temporarily schedule a controlled
substance. Even then, in order for the Attorney General to exercise this temporary authority, he or she
was required to consider three of eight codified factors
for permanent scheduling. Id. And in Whitman, 531
U.S. at 465, 473—where the Clean Air Act delegated
authority to the EPA to promulgate ambient air quality standards “to protect the public health”—the statute directed the EPA to use “technical ‘criteria’
documents” to aid the agency in “identify[ing] the
maximum airborne concentration of a pollutant that
the public health can tolerate.”
Section 102 falls woefully short of these standards, particularly in light of the sliding scale between
the scope of the power delegated and the specificity of
the intelligible principle that is required, as contemplated in Whitman. See 531 U.S. at 475. Congress in
§ 102 authorized the Secretary to waive any and all
legal requirements that the Secretary deems necessary to waive in order to ensure expeditious construction of the pertinent border barriers. But including
the word “necessary,” with no guidance as to what
might meet that threshold, does not change the fact
that the Secretary’s discretion to waive applicable
laws is extraordinarily broad. The Secretary has the
authority to waive any laws regardless of subject matter, including federal environmental, animal and
18
wildlife protection, land management, religious freedom, and archeological protection laws that fall far
outside the Secretary’s expertise and sphere of authority, as well as (at least in the government’s view)
any and all matters of state, local, and tribal law. Yet
Congress provided no guidance as to its intent regarding which laws the Secretary should waive or how the
Secretary should balance the interest in building a
border wall against the interests protected by other
statutes. Section 102(c) is the quintessential example
of a statute in which “Congress left the matter to the
[Executive] without standard or rule, to be dealt with
as he pleased.” Panama Refining Co., 293 U.S. at 418.
3. The breadth of the delegation here is truly
staggering. Historically, constitutionally valid
delegations have concerned the power to, for example,
fix a price, set a sentence, determine excessive profits,
prevent unfair voting power amongst shareholders,
determine rates, or regulate licenses. See Mistretta,
488 U.S. at 373-74 (collecting cases). The authority in
§ 102 to waive “all legal requirements,” and
potentially in their entirety, while at the same time
largely precluding judicial review of waiver decisions,
infra at 29-31, appears unprecedented. See
Memorandum from Stephen R. Viña & Todd
Tatelman, Legislative Attorneys, Am. Law Division,
Cong. Research Serv. on Section 102 of H.R. 418,
Waiver of Laws Necessary for Improvement of
Barriers at Borders 2-4 (Feb. 9, 2005). Other waiver
provisions, for example, are typically cabined by
(1) allowing waiver only of statutory requirements
contained in the same statute that authorizes the
waiver, (2) specifically enumerating the laws that
may be waived, or (3) allowing waiver only of a
19
grouping of similar laws. Id. at 3. See, e.g., 10 U.S.C.
§ 1107(a); 22 U.S.C. § 2375(d); 29 U.S.C. § 793; 42
U.S.C. § 6212(b); 42 U.S.C. § 6393(a)(2); 50 U.S.C.
§ 2426(e).
The delegation here is particularly problematic
for at least three overarching reasons. First, as noted,
it permits the Secretary to waive laws outside the
Secretary’s own statutory subject matter area.
Second, the Secretary waived laws governing the
Department’s own conduct, effectively immunizing
the Department itself from judicial scrutiny. Third,
the Secretary waived not just federal laws but also
state and local laws, thereby implicating serious
federalism concerns.
a. Section 102(c) gives a Cabinet official the power
to waive statutes that are within the purview of other
agencies. The Secretary presumably has expertise in
areas like immigration and national security, but
§ 102(c) permits waiver of laws governing areas
where the Secretary lacks expertise or authority—
most obviously here, regarding environmental policy,
but also including wildlife management, historical
preservation, public land management, and religious
freedom. Indeed, the specific statutory waivers
effectuated in this case run the gamut, encompassing,
among others:
•
The Administrative Procedure Act (5
U.S.C. § 551 et seq.);
•
The National Environmental Policy Act
(Pub. L. No. 91-190, 83 Stat. 852 (42 U.S.C.
§ 4321 et seq.)), the Endangered Species
20
Act (Pub. L. 93-205, 87 Stat. 884 (16 U.S.C.
§ 1531 et seq.)), the Clean Air Act (42
U.S.C. § 7401 et seq.), and the Clean Water
Act, (33 U.S.C. § 1251 et seq.));
•
The Fish and Wildlife Coordination Act
(Pub. L. No. 73-121 (16 U.S.C. § 661 et
seq.)), the Migratory Bird Conservation Act
(16 U.S.C. § 715 et seq.), and the Eagle Protection Act (16 U.S.C. § 668 et seq.);
•
The National Historic Preservation Act
(Pub. L. No. 89-665, 80 Stat. 915, as
amended, repealed, or replaced by Pub. L.
No. 113-287 (formerly codified at 16 U.S.C.
§ 470 et seq., now codified at 54 U.S.C.
§ 100101 note and 54 U.S.C. § 300101 et
seq.)), and the Paleontological Resources
Preservation Act (16 U.S.C. § 470aaa et
seq.)
•
The Farmland Protection Policy Act (7
U.S.C. § 4201 et seq.), and the Federal
Land Policy and Management Act (Pub. L.
No. 94-579 (43 U.S.C. § 1701 et seq.)); and
•
The Native American Graves Protection
and Repatriation Act (25 U.S.C. § 3001 et
seq.), the American Indian Religious Freedom Act (42 U.S.C. § 1996), and the Religious Freedom Restoration Act (42 U.S.C.
§ 2000bb).
In Section 102(c), the Secretary is given no
standards for picking and choosing among laws to
21
waive and no guidance for balancing the competing
interests of constructing the border wall versus the
weighty interests embodied in other legislative
enactments and enforced by DHS’s sister agencies.
How is the Secretary supposed to determine whether
waiving the Paleontological Resources Preservation
Act is necessary to ensure expeditious border barrier
construction? The waiver decisions contain no
indication that the Secretary even considered that
question. As a practical matter, the Secretary may
waive these laws without fully assessing or
explaining the impact a waiver will have on the
environment, land management, or tribal interests,
and without having to consider the views of those who
possess the requisite expertise and technical
knowledge. 4
b. Not only does section § 102(c) permit waiver of
an apparently limitless range of federal laws, but the
Secretary is waiving laws that govern the agency’s
own conduct. This means the Secretary could build a
border barrier by giving “a contract to his political cronies that had no safety standards, using 12-year-old
illegal immigrants to do the labor, run it through the
site of a Native American burial ground, kill bald eagles in the process, and pollute the drinking water of
neighboring communities.” 151 Cong. Rec. H466
4 Section 102(b)(1)(C) requires the Secretary “consult with”
various stakeholders but provides no statutory mechanism for
enforcing the consultation requirement. In this case, the Secretary failed to consult with the City of Calexico before making the
waiver determination. See Pet. App. 57a.
22
(daily ed. Feb. 9, 2005) (statement of Rep. Blumenauer).
The waiver authority as embraced by the government then further exacerbates these problems, inasmuch as it allows the Secretary to insulate DHS’s
underlying conduct from judicial oversight, in derogation of normal principles subjecting agency action to
review by the courts. The only check the statutory
terms provide on the Secretary’s unfettered ability to
insulate his or her conduct from outside review is the
very kind of constitutional challenge that this Petition raises. If ever a statute implicated nondelegation
concerns, this is it.
c. In addition to waiving federal laws, the
Secretary here also waived “all … state, or other laws,
regulations and legal requirements of, deriving from,
or related to the subject of” the enumerated federal
laws. Pet. App. 121a, 129a.
This Court should view the Secretary’s arrogation
of power to waive state, local, and tribal laws with a
particularly skeptical eye. The scope of “an
administrative agency’s power to pre-empt state
laws … affects the allocation of powers among
sovereigns.” Watters v. Wachovia Bank, N.A., 550 U.S.
1, 44 (2007) (Stevens, J., joined by Roberts, C.J., and
Scalia, J., dissenting). The purported authority for
this waiver comes from § 102(c)(1)’s generic reference
to the authority to waive “all legal requirements” as
necessary to ensure expeditious construction of the
border barriers. This hardly constitutes a clear
delegation of the authority to waive state and local
law. And absent judicial review, see infra § I.C., the
23
Secretary will be free to preempt any state law he or
she chooses, with no check to assure that the agency’s
actions are consistent with Congress’s delegation of
authority.
4. The government, and the court below, would
have this Court believe that § 102’s delegation is
permissible because the Executive has “independent
and significant constitutional authority in the area of
‘immigration and border control enforcement and
national security.’” Pet. App. 82a (citation omitted).
But the Executive cannot automatically insulate itself
from constitutional scrutiny simply by invoking
“national security.” See Youngstown Sheet & Tube
Co., 343 U.S. at 587-90. And generally speaking,
immigration—the target of the border wall—is a
matter left to Congress. See U.S. ex rel. Knauff v.
Shaughnessy, 338 U.S. 537, 543 (1950) (“Normally
Congress supplies the conditions of the privilege of
entry into the United States.”). Even if the Executive
may have broad power regarding the border, see
Trump v. Hawaii, 138 S. Ct. 2392 (2018), it does not
have the quintessentially Legislative power to repeal
existing federal, state, and local laws, see Clinton, 524
U.S. at 437. Regardless of the Executive’s power over
national security or whether the word “necessary”
sets out an intelligible principle, “the significance of
the delegated decision is simply too great for the
decision to be called anything other than ‘legislative’”
and violates the separation of powers. Whitman, 531
U.S. at 487 (Thomas, J., concurring).
5. Another case raising nondelegation issues,
Gundy v. United States, No. 17-6086, is currently on
the Court’s docket and is scheduled for oral argument
24
in this Court on October 2, 2018. Gundy involves the
federal Sex Offender Registration and Notification
Act’s (“SORNA’s”) delegation of authority to the Attorney General to issue regulations under 42 U.S.C.
§ 16913. The petitioner in Gundy argues that § 16913
does not contain an adequate intelligible principle,
particularly in light of SORNA’s criminal penalties.
This Court’s decision in Gundy could inform the appropriate disposition in this case, which raises, among
other issues, a challenge to the adequacy of § 102’s
“intelligible principle” and the Secretary’s waiver of
laws that include criminal penalties. See, e.g., 16
U.S.C. § 1540(b) (criminal penalties under the ESA);
id. § 668(a) (criminal penalties relating to bald and
golden eagles). At a minimum, the Court should hold
this petition pending its disposition in Gundy, and
then dispose of this petition as appropriate in light of
the disposition in Gundy.
B. A Section 102(c) waiver is a partial
repeal of enacted law in violation of the
Presentment and Take Care Clauses.
The authority to legislate is entrusted solely to
Congress. U.S. Const. art. I, §§ 1, 7. Statutes may be
enacted “only … in accord with a single, finely
wrought and exhaustively considered, procedure.”
Clinton, 524 U.S. at 419 (internal quotation omitted).
The Executive’s constitutional role is not to make or
unmake laws unilaterally, but to “take Care that the
Laws be faithfully executed.” U.S. Const., art. II, § 3.
1. The Constitution does not allow the Executive
“to enact, to amend, or to repeal statutes.” Clinton,
524 U.S. at 438. “Amendment and repeal of statutes,
25
no less than enactment, must conform with” the bicameralism and presentment requirements of Article I. Chadha, 462 U.S. at 954. Following the textual
requirements of the Constitution ensures that political accountability is not compromised. See Mitchell J.
Widener, The Presentment Clause Meets The Suspension Power: The Affordable Care Act’s Long And
Winding Road To Implementation, 24 B.U. Pub. Int.
L.J. 109, 119 (2015).
The Secretary’s publication of a § 102(c) waiver in
the Federal Register has the same effect as a partial
repeal or amendment of the underlying law. It is as if
the Secretary grafted onto each of dozens of statutes
a new subsection stating that “Nothing in this section,
or any law deriving from, or related to the subject of
this section, shall apply to the construction of border
barriers outside San Diego or Calexico.” See Pet. App.
121a-123a, 129a-131a (waiving “in their entirety”
more than two dozen statutes, “including all federal,
state, or other laws, regulations and legal requirements of, deriving from, or related to the subject of”
the enumerated statutes.). Such an amendment alters those statutes’ “legal force or effect” as applied to
the construction of border barriers. Clinton, 524 U.S.
at 438.
In light of the Secretary’s and the district court’s
position that the waiver authority in § 102(c) is not
constrained by the particular projects identified in
§ 102(b), see generally Pet. App. 36a-64a, the waiver
authority in their view apparently extends to any “areas of high illegal entry” along the entire U.S. border,
including, potentially, the border with Canada or marine borders. Compare § 102(a) with § 102(b) (barriers
26
along the “southwest” border). And as noted, prior
waivers already covered substantial stretches of the
southern land border with Mexico.
The district court believed that the waiver authority generally and the particular waivers at issue here
nevertheless complied with Article I because the
waivers are “permitted by section 102(c)” and “narrow.” Pet. App. 94a. But similar logic did not stop this
Court in Clinton from striking down the Line Item
Veto Act, Pub. L. No. 104-130, 110 Stat. 1200, (codified at 2 U.S.C. § 691 et seq., (1996)), which was enacted by Congress and permitted the partial repeal of
an enacted statute.
The power granted to the President by the Line
Item Veto Act was not materially different than the
power granted to the Secretary here. The Constitution prohibits a complete cancellation of a provision,
as in the Line Item Veto Act, no less than it prohibits
executive amendment of an enacted law. Chadha, 462
U.S. at 954.
Moreover, the Line Item Veto Act contained detailed procedures providing a check on the President’s
use of the statutory veto power. The President could
veto only three specific types of provisions and in doing so he had “to adhere to precise procedures whenever he exercises his cancellation authority.” Clinton,
524 U.S. at 436-38. Those procedures included consideration of specific factors, a finding by the President
that cancellation would meet three specified requirements, and transmission of written findings to Congress. The statute also provided Congress with an
opportunity to disapprove the president’s cancellation
27
(subject to the President’s constitutional veto authority). Id.
Here, in contrast, § 102(c) gives the Secretary “authority to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines
necessary to ensure expeditious construction of the
barriers and roads under this section,” and merely requires notice of a waiver in the Federal Register. Section 102(c) then provides for no further legislative or
(non-constitutional) judicial review of the Secretary’s
waiver determinations. § 102(c)(1), Pet. App. 116a.
The statute does not include even the very minimal
oversight by Congress that the Line Item Veto Act
provided. The waivers effected by section 102(c) certainly cannot be characterized as “narrow” when they
are compared to the Line Item Veto legislation that
this Court held violated the separation of powers.
The government has tried to analogize a § 102(c)
waiver to an “‘executive grant of immunity or waiver
of claim.’” Dkt. 35-1 at 61 (quoting In re Nat’l Sec.
Agency Telecomms. Records Litig., 671 F.3d 881, 895
(9th Cir. 2011) (“In re Telecomms.”)). That is wrong.
The Secretary’s waiver does not “trigger a defense or
immunity for a third party.” In re Telecomms, 671
F.3d at 895. As explained above at 21, the waiver encompasses statutes governing the Secretary’s own
conduct. Nor does the waiver merely provide “a defense or immunity” to a suit brought by a citizen or
tribal, state, or local government seeking to enforce a
waived law; the waiver provides that those laws do
not apply at all. That is no different than an amendment to the law, which in our tripartite system the
28
President (let alone an unelected Secretary) lacks the
power to effectuate.
2. The Secretary likewise violated the Take Care
Clause by using the waiver authority in § 102(c) to
unilaterally excise a host of laws that would otherwise
govern the border wall. Supra at 19-21. The Secretary
imposed his or her own view of the relative importance of various congressionally enacted laws—including NEPA, the ESA, and the entirety of the
APA—against the Secretary’s desire to build prototype walls and replacement fencing. But the Take
Care Clause “impose[s] a duty on the President to enforce the law, regardless of his own administration’s
view of its wisdom or policy.” Robert J. Delahunty &
John C. Yoo, Dream on: The Obama Administration’s
Nonenforcement of Immigration Laws, the Dream Act,
and the Take Care Clause, 91 Tex. L. Rev. 781, 799
(2013) (discussing founders’ understanding of the
Take Care Clause). It does not matter that § 102(c)
purports to give the Secretary that power; it is “the
exclusive province of the Congress not only to formulate legislative policies and mandate programs and
projects, but also to establish their relative priority
for the Nation.” Tenn. Valley Auth. v. Hill, 437 U.S.
153, 194 (1978) (emphasis added). Unless and until
Congress decides that certain statutory requirements
that otherwise govern the border wall should be disregarded, the Executive must “take Care that the
Laws be faithfully executed.” U.S. Const. art. II, § 3.
See also Pet. App. 87a (“the Take Care clause applies
not only to the President but also his Executive officers”).
29
C. Section 102(c)’s jurisdiction-stripping
provision insulates the Executive from
judicial review and further aggravates
the separation of powers violation.
There is a strong presumption that agency action
is subject to judicial review. See, e.g., Bowen v. Mich.
Acad. of Family Physicians, 476 U.S. 667, 670-672
(1986). But, as the government argued below,
§ 102(c)’s preclusion of judicial review is “emphatic
and comprehensive.” Dkt. 35-1 at 11-12. First,
§ 102(c)(2)(A) grants federal district courts exclusive
jurisdiction over all causes or claims arising under the
section, thus eliminating state court review. Second,
§ 102(c)(2)(A) limits claims to those alleging a violation of the Constitution and purports to divest the federal courts of jurisdiction to hear any other claim.
Third and finally, § 102(c)(2)(C) takes the nearly unprecedented step of extinguishing ordinary appellate
review as of right; the statute provides that a district
court’s decision may only be reviewed by writ of certiorari in this Court. 5
Section 102(c)’s “emphatic and comprehensive”
preclusion of judicial review is particularly insidious
in the context of a broad delegation of power. After all,
“[p]rivate rights are protected by access to the courts
to test the application of the policy in the light of these
5 The only other example we have located of Congress eliminating appellate review in this manner is the Trans-Alaskan
Pipeline Authorization Act (“TAPAA”). See 43 U.S.C. § 1652(d).
Importantly, the TAPAA permits the district court to adjudicate
claims that the agency had exceeded its own statutory authority.
Claims of mere statutory violation are precluded under
§ 102(c)(2)(A).
30
legislative declarations.” Am. Power & Light Co., 329
U.S. at 105. As the Court has explained, “judicial review perfects a delegated-lawmaking scheme by assuring that the exercise of such power remains within
statutory bounds,” and is necessary “in order to save
the [statute’s] delegation of lawmaking power from
unconstitutionality.” Touby, 500 U.S. at 170 (Marshall, J., joined by Blackmun, J., concurring); see also
Mistretta, 488 U.S. at 379 (a permissible intelligible
principle may be tested “in a proper proceeding”
(quoting Yakus v. United States, 321 U.S. 414, 425-26
(1944))).
The district court recognized that “judicial review
provides an important check on the power delegated
by Congress,” but reasoned that judicial review
“would defeat the purpose of the law to expedite the
construction of border barriers and roads in areas
where they are needed.” Pet. App. 84a-85a. But without judicial review, there is no way to ensure the Secretary is carrying out the directives enacted by
Congress. See Touby, 500 U.S. at 168-69; A.L.A.
Schechter Poultry Corp., 295 U.S. at 533; Yakus, 321
U.S. at 426 (recognizing that one of the purposes of
requiring Congress to provide intelligible principles
was so that a judicial tribunal “in a proper proceeding
[may] ascertain whether the will of Congress has been
obeyed.”). Absent judicial review, typically through
the Administrative Procedure Act, administrative
agencies cannot be “confined to the scope of authority
granted or to the objectives specified,” and delegations
“in effect be[come] blank checks drawn to the credit of
some administrative officer or board.” S. Rep. No. 79752, at 212 (1945).
31
This case is illustrative. The Secretary waived the
entirety of the APA and is using § 102(c)’s waiver authority as a blank check. The Secretary has used unbridled discretion to effectively repeal dozens of
federal, state, tribal and local laws—robbing them of
legal force and effect for an indefinite period and with
respect to as yet undefined activities at the border.
This reading permits DHS to treat every border infrastructure project it proposes under the IIRIRA as
within the § 102 waiver authority, potentially in perpetuity and unconstrained by any of the geographic
limits provided in § 102(b) or any of the animating
purposes reflected in § 102(a).
These concerns are not merely hypothetical. The
Secretary is using the waiver authority to construct
prototype walls to “evaluate” the prototypes’ “design
features.” Pet. App. 128a. A 25-foot wide prototype
wall will not “deter illegal crossings.” IIRIRA § 102(a).
And the Secretary is also extending the waiver authority to encompass replacement walls and construction projects outside of the statute’s original limits.
See Pub. L. No. 104-208, div. C, tit. I, § 102(a), 110
Stat. 3009, 3009-554 (limiting waiver to NEPA and
ESA for specific 14-mile segment of border barrier).
II. The Question Presented Is Important And
Recurring, And The Impossibility Of A
Circuit Conflict Highlights The Need For
This Court’s Review.
This Court’s review is warranted in light of the
extraordinary legal and practical significance of the
issues. As outlined above, § 102(c) upsets the distri-
32
bution of powers among the three branches of government and operates to insulate important and highly
consequential border-related activities from judicial
review. But there will never be a circuit split on the
constitutionality of the statute because the statute
precludes ordinary appellate review by the courts of
appeals. Even in more quotidian settings, the Court
regularly grants review of cases raising separation of
powers issues even absent a circuit split. See, e.g.,
Gundy, No. 17-6086; Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010); Metro.
Washington Airports Auth. v. Citizens for Abatement
of Aircraft Noise, 501 U.S. 252 (1991); Clinton, 524
U.S. 417. This is especially so when Congress devises
new ways of allocating power between the branches.
See, e.g., Free Enter. Fund, 561 U.S. 477; Clinton, 524
U.S. 417; Mistretta, 488 U.S. 361; Chadha, 462 U.S.
919. These considerations militate in favor of this
Court’s review in this case as well.
Indeed, the absence of normal appellate review
also means that, without a decision from this Court,
there will never be binding precedent on § 102(c)’s
constitutionality: “‘A decision of a federal district
court judge is not binding precedent in either a different judicial district, the same judicial district, or even
upon the same judge in a different case.’” Camreta v.
Greene, 563 U.S. 692, 709 n.7 (2011) (quoting J. Moore
et al., Moore’s Federal Practice § 134.02 (3d ed. 2011)).
That is a particular problem here, with the U.S-Mexico border spanning four states and multiple federal
judicial districts in multiple circuits (and the District
of Columbia is also an additional possible venue for
border-wall-related litigation, see Ctr. For Biological
33
Diversity v. U.S. Dep’t of Homeland Sec., No. 18-cv655 (D.D.C. March 22, 2018)).
III. This Case Is An Ideal Vehicle To Address
The Question Presented.
This case presents a perfect vehicle to address the
important constitutional issues regarding § 102(c)’s
infringement upon the separation of powers. The issues were squarely presented and ruled upon below.
The district court received extensive briefing on the
constitutional issues, see Dkts. 28-1, 29-1, 30-2, 35-1,
36, 38, 39, 42, and issued a detailed opinion on summary judgment, see Pet. App. 70a-85a (nondelegation); Pet. App. 92a-95a (presentment); Pet. App. 85a90a (take care); Pet. App. 83a-85a (lack of judicial review).
Unlike the two prior petitions considered by this
Court, Defenders of Wildlife v. Chertoff, 554 U.S. 918
(2008) (No. 07-1180) and County of El Paso v. Napolitano, 557 U.S. 915 (2009) (No. 08-751), this case is the
first petition to involve the Secretary’s use of a waiver
that on its face extends beyond the border projects
specifically identified by Congress under either
§ 102(a) or § 102(b)—specifically, a project to create a
“prototype” wall that by itself cannot prevent anyone
from crossing the border, as well as constructing replacement fencing (in contrast to the “additional”
fencing authorized by § 102).
Without this Court’s review, there will be no binding precedent governing these issues, and suits challenging the statute and the Secretary’s waivers will
continue to proliferate. The President has made clear
34
his intention to “secure the southern border of the
United States through the immediate construction of
a physical wall on the southern border” and to “obtain
complete operational control” of the border. See Exec.
Order No. 13767, 82 Fed. Reg. 8793. Indeed, the District Court for the District of Columbia is currently
considering a challenge to a waiver determination for
20 miles of border barriers in New Mexico. Ctr. For
Biological Diversity, Case No. 18-cv-655 (D.D.C.
March 22, 2018). This Court’s review is urgently
needed to address the serious separation of powers issues implicated by § 102, and to resolve them in a
binding and conclusive manner.
CONCLUSION
For the foregoing reasons, this Court should grant
this petition for a writ of certiorari. In the alternative,
the Court should hold this petition pending its disposition in Gundy v. United States, No. 17-6086, and
then dispose of this petition as appropriate in light of
the disposition in Gundy.
35
Respectfully submitted,
Anthony T. Eliseuson
ANIMAL LEGAL
DEFENSE FUND
150 South Wacker Drive
Suite 2400
Chicago, IL 60606
Monte Cooper
Counsel of Record
Elizabeth R. Moulton
ORRICK, HERRINGTON &
SUTCLIFFE LLP
1000 Marsh Road
Menlo Park, CA 94025
(650) 614-7375
mcooper@orrick.com
Brian Segee
Brendan Cummings
Jean Su
Jason Rylander
CENTER FOR
BIOLOGICAL DIVERSITY
DEFENDERS OF
660 South Figueroa Street
WILDLIFE
Los Angeles, CA 90017
1130 17th Street NW
Washington, DC 20036
Date August 23, 2018
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.