Reply Brief — Animal Legal Defense Fund, et al., Petitioners v. Department of Homeland Security, et al.

No. 18-247

IN 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

_______________________________

REPLY BRIEF OF PETITIONER

_______________________________

Anthony T. Eliseuson

ANIMAL LEGAL

DEFENSE FUND

150 South Wacker Drive

Suite 2400

Chicago, IL 60606

Thomas M. Bondy

Counsel of Record

Elizabeth R. Moulton

ORRICK, HERRINGTON &

SUTCLIFFE LLP

1152 15th Street NW

Washington, DC 20005

(202) 339-8400

tbondy@orrick.com

Brian Segee

Brendan Cummings

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

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... ii

INTRODUCTION ..................................................... 1

I.

Section 102(c)’s Sweeping Waiver

Authority Violates The Separation Of

Powers. ................................................................ 2

II. The Government Does Not Dispute That

This Is An Important And Recurring

Issue, Raised In An Ideal Vehicle. ................... 11

CONCLUSION ........................................................ 12

ii

TABLE OF AUTHORITIES

Cases

Am. Power & Light Co. v. SEC,

329 U.S. 90 (1946) ..................................................4

Clinton v. City of New York,

524 U.S. 417 (1998) ................................................9

County of El Paso v. Napolitano,

557 U.S. 915 (2009) ..............................................12

Defenders of Wildlife v. Chertoff,

554 U.S. 918 (2008) ........................................11, 12

Fed. Power Comm’n v. Hope Nat. Gas Co.,

320 U.S. 591 (1944) ................................................5

Gundy v. United States,

No. 17-6086 ............................................................7

INS v. Chadha,

462 U.S. 919 (1983) ................................................8

Loving v. United States,

517 U.S. 748 (1996) ............................................3, 5

Marshall Field & Co. v. Clark,

143 U.S. 649 (1892) ........................................3, 8, 9

Mistretta v. United States,

488 U.S. 361 (1989) ......................................2, 3, 11

Nat’l Broad. Co. v. United States,

319 U.S. 190 (1943) ............................................4, 5

iii

Tenn. Valley Auth. v. Hill,

437 U.S. 153 (1978) ................................................9

Touby v. United States,

500 U.S. 160 (1991) ..............................................10

Watters v. Wachovia Bank, N.A.,

550 U.S. 1 (2007) ....................................................6

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) .................................... 2, 4, 6, 7

Yakus v. United States,

321 U.S. 414 (1944) ..........................................4, 10

Statutes & Regulations

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996

§ 102 (a), (b), (c) ............................................ passim

43 U.S.C. § 1652(c) ......................................................8

Secure Fence Act of 2006, Pub. L. No. 109367, 120 Stat. 2638 ..............................................12

Other Authorites

Determination Pursuant to Section 102 of

the Illegal Immigration reform and

Immigration Responsibility Act of 1996

as Amended by Section 102 of the REAL

ID Act of 2005 and as Amended by the

Secure Fence Act of 2006, 72 Fed. Reg.

60870-01 (effective Oct. 26, 2007) .......................12

INTRODUCTION

The government does not disagree that the constitutionality of the waiver provision in § 102(c) is an important and recurring issue. It accepts that the

provision purports to give the Secretary of Homeland

Security the power to waive any federal, state, or local

laws that might apply to the construction of border

barriers. It does not dispute that Section 102(c) authorizes the Secretary to determine the applicability

of laws the Secretary has no expertise in enforcing,

including environmental protection and wildlife management laws, worker safety and procurement integrity laws, and religious freedom and historic

preservation laws, as well as laws governing the Secretary’s own conduct, like federal contracting laws.

And it cannot deny that this Court is the only arbiter

that can resolve the critical issues presented here in

a binding and conclusive manner, given that § 102(c)

strips all other appellate courts of jurisdiction.

But, says the government, § 102(c)’s extraordinary and unprecedented delegation to an unelected

cabinet official to decide which laws are in and which

are out need not concern this Court. Moreover, in the

government’s telling, Congress’ preclusion of normal

court of appeals review makes this a weaker, not

stronger, case for this Court’s review.

The government is wrong. By any measure, the

unfettered power this statute confers on the Secretary

is staggering. And border-related litigation involving

the Secretary’s waiver authority proliferates, with no

binding judicial decisions guiding district courts. As

the amicus briefs in support of certiorari confirm, this

2

Court’s guidance is urgently needed to pass upon the

validity of this unusual and highly consequential Act

of Congress.

I.

Section 102(c)’s Sweeping Waiver Authority

Violates The Separation Of Powers.

The government asks the Court to treat § 102(c)

as a commonplace statute instructing the Secretary to

carry out a legislative choice made by Congress. It is

anything but. Section 102(c) shifts legislative power

to an unelected cabinet official; provides the official

with no meaningful guidance for exercising that

power, which effectively includes the power to amend

existing law; and cuts off judicial oversight of the exercise of that power. Each move threatens the separation of powers; together, they push this scheme past

constitutional limits.

A. Nondelegation. The government acknowledges that the Constitution “‘permits no delegation of

[legislative] powers,’” but maintains that § 102(c) is

just a means for Congress to “obtain[] the assistance

of its coordinate Branches.” Gov’t Br. 13 (quoting

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472

(2001), and Mistretta v. United States, 488 U.S. 361,

372 (1989)). The government thus defends § 102(c) by

implying that Congress made the policy judgment

that otherwise applicable laws should not apply to the

construction of border barriers and the Secretary is

merely tasked with carrying out that judgment. In enacting § 102(c), however, Congress did not say, “All legal requirements that would otherwise impede

expeditious construction of border barriers are hereby

waived.” Instead, Congress left the choice of which

3

laws apply to the Secretary’s construction projects to

the Secretary herself. That is a classic example of a

“delegation of power to make the law, which necessarily involves a discretion as to what it shall be.”

Marshall Field & Co. v. Clark, 143 U.S. 649, 693

(1892) (citation omitted). This “cannot be done.” Id. at

694. Congress alone is responsible for making the law.

1. The government cannot identify any valid intelligible principle in § 102. The government points to

the capacious standards “necessary to install additional physical barriers and roads” and “necessary to

ensure expeditious construction.” Gov’t Br. 16, 17.

But those broad phrases do not delineate the “general

policy” or “boundaries of th[e] delegated authority”

that must guide the Secretary’s discretion. Mistretta,

488 U.S. at 373. And guidance from Congress is especially important here, because § 102’s expansive

waiver power is outside the Secretary’s “traditional

authority.” Loving v. United States, 517 U.S. 748, 772

(1996).

In authorizing the Secretary to waive “all legal requirements” “necessary” to construct physical barriers on the border, Congress set no boundaries on the

Secretary’s discretion. It offered her no specified laws

that might be waived to achieve her purpose, not even

as nonexclusive examples. It provided no factors she

might balance; imposed no limitations on the kinds of

legal requirements that could be waived; and suggested no inputs—technical criteria, expert guidance,

fact-finding hearings, or anything else—to inform her

determination. And the word “necessary,” on which

the government hangs its entire argument that

§ 102(c) includes an intelligible principle, is so broad

4

as to be essentially meaningless. “Necessary” “additional physical barriers and roads” is no small sphere.

The southern border with Mexico is nearly 2,000

miles long, while the border with Canada is another

5,500-plus miles. And the projects the Secretary believes are encompassed within the directive of “install[ing] additional barriers and roads” include,

among other things, building prototypes, making repairs, and replacing existing fencing. See Pet. App.

34a-64a (rejecting Petitioners’ argument that § 102

contains mandatory limits on projects the Secretary

may undertake). “Necessary to ensure expeditious

construction” is no more helpful in “establish[ing] the

standard the Secretary is to apply in determining

which if any legal requirements to waive in connection with those projects.” Gov’t Br. 17.

Contrast this with delegations the government

cites as comparable, id. at 18 n.7. The Clean Air Act

provisions challenged in American Trucking required

the EPA to set air-quality standards based on technical criteria and included guidance regarding those

criteria and the procedures for setting the standards.

Am. Trucking, 531 U.S. at 465. In American Power &

Light, the Court rejected a challenge to a statute that

contained “a veritable code of rules … itself for the

Commission to follow in giving effect to the standards

of § 11(b)(2).” Am. Power & Light Co. v. SEC, 329 U.S.

90, 105, (1946). In Yakus, the statute provided objective guidelines for the Administrator’s exercise of

price-setting authority, requiring the Administrator

to consider the prices prevailing within a two-week

window. Yakus v. United States, 321 U.S. 414, 421

(1944). And in National Broadcasting Company v.

5

United States, the Court rejected a challenge to a statute allowing the Federal Radio Commission to conduct investigations, promulgate regulations, and

issue licenses, holding that “[t]he purpose of the Act,

the requirements it imposes, and the context of the

provision in question” provided more than just a

“vague and indefinite” “standard to guide determinations.” 319 U.S. 190, 215, 225-26 (1943) (citation omitted). Whatever guidance the Secretary derives from

the word “necessary,” it pales in comparison to the

guidance provided in these cases. See Pet. 16-17; see

also infra 8-9.

The lack of any intelligible principle in the waiver

provision is exacerbated by the fact that the determination it entails—the decision of whether to waive

any or all applicable legal requirements, regardless of

their source or subject matter—falls well outside the

ordinary responsibilities of the Secretary of Homeland Security. Indeed, where a delegation “call[s] for

the exercise of judgment or discretion that lies beyond

the traditional authority of” an official, the nondelegation doctrine requires more granular guidance.

Loving, 517 U.S. at 772.1 Although the government

insists that the “subject matter” of this delegation is

“immigration,” a topic at least generally within the

1 Hope Natural Gas (Gov’t Br. 18 n.7) is illustrative. There,

the Federal Power Commission was tasked with setting rates

chargeable by natural gas companies—a task squarely within its

traditional authority and expertise—following a hearing, at a

“just and reasonable rate.” Fed. Power Comm’n v. Hope Nat. Gas

Co., 320 U.S. 591, 600 (1944). More detailed guidance was not

“needed, given the nature of the delegation and the [agency that

was] to exercise the delegated authority.” Loving, 517 U.S. at

772.

6

Secretary’s purview, the subject matter of the challenged waiver provision involves balancing competing

policy interests across a broad array of substantive areas—a fundamentally legislative function. This matter falls well outside the “traditional authority” of the

Secretary, and the delegation requires substantially

more guidance than Congress has provided.

2. The government also argues that § 102(c)

passes muster under American Trucking’s recognition

that “the degree of agency discretion that is acceptable varies according to the scope of the power” involved. 531 U.S. at 475; Gov’t Br. 18. But the

government does not dispute the many ways in which

§ 102(c) is extraordinarily broad. See Pet. 18-23.

Section 102 empowers the Secretary to waive “all”

applicable legal requirements, while tightly constraining judicial review of waivers. The requirements the Secretary may waive include provisions

totally outside the Secretary’s area of expertise, Pet.

19-20; laws governing the Secretary’s conduct, id. at

21-22; and, at least in the government’s view, state

and local laws, despite no clear authorization to waive

such laws, id. at 22; see also Watters v. Wachovia

Bank, N.A., 550 U.S. 1, 44 (2007) (Stevens, J., joined

by Roberts, C.J., and Scalia, J., dissenting) (The scope

of “an administrative agency’s power to pre-empt

state laws … affects the allocation of powers among

sovereigns.”). The government makes no effort to defend the scope of § 102(c), other than to say it applies

only to construction, replacement, and maintenance

of barriers and roads, Gov’t Br. 19, which is plainly

incorrect given the broad swath of unrelated laws the

Secretary has waived, see Pet. 19-20.

7

All of this—the lack of delineated boundaries, the

delegation outside the traditional authority of the

Secretary, and the extraordinary nature of the power

conferred—makes clear that “the significance of the

delegated decision is simply too great for the decision

to be called anything other than ‘legislative,’” and no

“intelligible principle” saves the statute. Am. Trucking, 531 U.S. at 487 (Thomas, J., concurring).

3. The government disputes our showing that, at

a minimum, the Court should hold this petition pending its decision in Gundy v. United States, No. 176086 (argued October 2, 2018). See Pet. 23-24. The

government’s reasons are wide of the mark. Both this

case and Gundy implicate expansive delegations of

power to an executive official to make legislative determinations about whether legal requirements

should apply. In certain aspects, the delegation in this

case is even more problematic than the one at issue in

Gundy: In Gundy, the decision regarding the application of the sex-offender registration requirement to

certain offenders at least falls within the general expertise of the official tasked with carrying out the delegation, the Attorney General. Here, the Secretary is

given a blank check to disregard any legal requirements, regardless of subject matter, while building

border barriers in any fashion she wishes.

B. Presentment and Take Care Clauses. The

government argues that the Secretary’s selective

waiver of more than 30 federal statutes in each waiver

comports with the Presentment Clause because

§ 102(c) “does not empower the Secretary to repeal

any law.” Gov’t Br. 20 (emphasis added); see also id.

at 22 (discussing Clinton v. City of New York). But

8

“[a]mendment … no less than enactment, must conform with” the Presentment clause. INS v. Chadha,

462 U.S. 919, 954 (1983) (emphasis added). And the

Secretary’s waiver effectively amends each waived

statute by grafting on a provision that reads, “This

law does not apply to the San Diego and Calixeco border barrier projects.” See Pet. 25-26.

The government’s list of purportedly analogous

“waiver” and “exemption” provisions, Gov’t Br. 21,

does not remedy the problems with § 102(c). As an initial matter, petitioners do not agree that laws such

as 43 U.S.C. §1652(c), which relates to construction of

the Trans-Alaska pipeline, are necessarily constitutional. (And that statute at least permits judicial review of the merits of a waiver.) More importantly,

none of the statutes listed gives an official the extraordinarily broad power to waive all laws, regardless of

subject matter, and without input from the agencies

responsible for executing those laws.

The government highlights Marshall Field as an

example of a valid waiver provision. Gov’t Br. 21 (citing Marshall Field, 143 U.S. at 693). But Marshall

Field did not reflect executive authorization to waive

laws at all. In that case, Congress enacted a statute

in which it provided for the “free introduction” of five

consumer goods into the country but authorized the

President—in the event he found other countries to be

imposing “reciprocally unequal and unreasonable”

“duties or other exactions” on the same goods—to impose tariffs at congressionally set rates. Marshall

Field, 143 U.S. 680-81. The sole discretion vested in

the President was in determining whether that precondition had been met; if so, he was to implement

9

tariffs delineated by Congress. Far from representing

congressional authorization to the President to

amend a duly enacted law, the challenged provision

required the President to enforce the law as written if

he found the “unequal and unreasonable” condition to

be met: “What the president was required to do was

simply in execution of the act of congress.” Id. at 693.

Marshall Field exemplifies Congress enacting and the

President executing the law, as the separation of powers requires. It does not support any argument that

§ 102(c)—which vests the decision of which laws even

apply entirely in the hands of the Executive—is constitutional.

The government’s effort to distinguish Clinton v.

City of New York falls flat, too. Gov’t Br. 22. By waiving the applicability of a law that would otherwise apply to construction of a border barrier, the Secretary

changes the law’s “legal force or effect.” Clinton, 524

U.S. 417, 437 (1998). That change reflects the Secretary’s (unreviewable and unguided) “rejection of the

policy judgment [of] Congress” that the waived law

should otherwise apply. Gov’t Br. 22 (alterations and

quotations omitted).

Congress did not decide that construction of border barriers would be a lawless enterprise, but rather

impermissibly gave the choice of what laws govern the

Secretary’s border wall construction to the Secretary

herself. Supra 3. That places the Secretary in the untenable position of “establish[ing the laws’] relative

priority for the Nation,” a task that is “the exclusive

province of the Congress.” Tenn. Valley Auth. v. Hill,

437 U.S. 153, 194 (1978). The Secretary cannot, consistent with the Take Care Clause, make those

10

choices, but must instead execute the laws Congress

wrote.

C. Lack of judicial review. The government asserts that the statute’s preclusion of normal court of

appeals review “has no bearing on” the constitutional

inquiry. Gov’t Br. 24. That is wrong; “judicial review

perfects a delegated-lawmaking scheme by assuring

that the exercise of such power remains within statutory bounds.” Touby v. United States, 500 U.S. 160,

170 (1991) (Marshall, J., joined by Blackmun, J., concurring). Without judicial oversight, there is no way

to ensure that the Secretary acts in accordance with

whatever limitations Congress placed on her discretion. See id.

Indeed, in this case the Secretary has decided she

is not constrained by the statute’s original limits, or

even the limits of § 102(b), regarding the scope of the

border projects that can be covered by a waiver decision. See Pet. 31. And for the prototype walls—as to

which the government makes no effort whatsoever to

defend the waiver—the Secretary went far beyond

any principle found in § 102(a); no 25-foot-wide prototype wall will “deter illegal crossings.”

The government’s fallback position is that Congress may check the Executive. Gov’t Br. 25. Perhaps.

But our Constitution created a system of two meaningful checks on the Executive. In addition to congressional oversight, judicial review “in a proper

proceeding to ascertain whether the will of Congress

has been obeyed” is necessary. Yakus, 321 U.S. at 426

(upholding delegation of authority to fix prices, and

noting availability of judicial review). Section 102(c)

11

thwarts “the central judgment of the Framers of the

Constitution that, within our political scheme, the

separation of governmental powers into three coordinate Branches is essential to the preservation of liberty.” Mistretta, 488 U.S. at 380.

II. The Government Does Not Dispute That

This Is An Important And Recurring Issue,

Raised In An Ideal Vehicle.

This case is an excellent vehicle for the Court to

resolve the important and recurring issue of whether

§ 102(c) violates the separation of powers.

The government does not dispute that this petition presents an important and recurring issue. Pet.

31-33; Gov’t Br. 26. Instead, it contends that the unavailability of normal appellate review is a feature, not

a bug, militating against certiorari. Gov’t Br. 27. Just

the opposite. The statute’s preclusion of court of appeals review fosters uncertainty in the district courts,

which lack binding precedent to guide their consideration of challenges to § 102(c) and the Secretary’s

waivers. See Pet. 32-33. The issues raised here will

come to a more “expeditious” final resolution (Gov’t

Br. 27) if this Court grants certiorari and resolves

them, instead of letting challenges proliferate and fester in the district courts.

The government also points to previous cert denials. As the government notes (at 5, 26), two prior cert

petitions challenged § 102(c). But this is the first

clean vehicle involving a waiver that extends to projects beyond those authorized by § 102(b). The first

petition challenging § 102(c), Defenders of Wildlife v.

12

Chertoff, 554 U.S. 918 (2008) (No. 07-1180), was limited to a fencing project specifically identified in

§ 102(b). Compare 72 Fed. Reg. 60870-01 (waiving

laws applicable to barrier construction from “approximately 4.75 miles west of the Naco, Arizona Port of

Entry to the western boundary of the San Pedro Riparian National Conservation Area”) with Secure

Fence Act of 2006, Pub. L. No. 109-367, § 3, 120 Stat.

2638 (authorizing fencing “extending from 10 miles

west of the Calexico, California, port of entry to 5

miles east of the Douglas, Arizona, port of entry.”).

The second petition, County of El Paso v. Napolitano,

557 U.S. 915 (2009) (No. 08-751), involved ancillary

standing and injunctive relief issues not implicated

here. This is an important case about the allocation of

power across the three branches of the Federal government, it presents the issues cleanly, and it warrants this Court’s review.

CONCLUSION

This Court should grant the petition.

Respectfully submitted,

13

Anthony T. Eliseuson

ANIMAL LEGAL

DEFENSE FUND

150 South Wacker Drive

Suite 2400

Chicago, IL 60606

Thomas M. Bondy

Counsel of Record

Elizabeth R. Moulton

ORRICK, HERRINGTON &

SUTCLIFFE LLP

1152 15th Street NW

Washington, DC 20005

(202) 339-8400

tbondy@orrick.com

Brian Segee

Brendan Cummings

Jean Su

CENTER FOR

Jason Rylander

BIOLOGICAL DIVERSITY

DEFENDERS OF

660 South Figueroa Street

WILDLIFE

1130 17th Street NW

Los Angeles, CA 90017

Washington, DC 20036

Date November 12, 2018