Petition for Writ of Certiorari — Center for Biological Diversity, et al., Petitioners v. Chad Wolf, Acting Secretary of Homeland Security, et al.

Supreme Court briefJan 31, 2020

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No. _________

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In The

Supreme Court of the United States

-----------------------------------------------------------------CENTER FOR BIOLOGICAL DIVERSITY, ANIMAL

LEGAL DEFENSE FUND, DEFENDERS OF WILDLIFE,

AND SOUTHWEST ENVIRONMENTAL CENTER,

Petitioners,

U.S. DEPARTMENT OF HOMELAND SECURITY

AND CHAD WOLF, ACTING SECRETARY OF THE

U.S. DEPARTMENT OF HOMELAND SECURITY,

Respondents.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The United States District Court

For The District Of Columbia

-----------------------------------------------------------------PETITION FOR A WRIT OF CERTIORARI

-----------------------------------------------------------------A. JEAN SU

Counsel of Record

ERIC R. GLITZENSTEIN

BRIAN P. SEGEE

CENTER FOR BIOLOGICAL DIVERSITY

1411 K Street NW, Suite 1300

Washington, DC 20005

(202) 849-8399

jsu@biologicaldiversity.org

JASON C. RYLANDER

DEFENDERS OF WILDLIFE

1130 17th Street NW

Washington, DC 20036

ANTHONY T. ELISEUSON

ANIMAL LEGAL DEFENSE FUND

150 South Wacker Drive, Suite 2400

Chicago, IL 60606

Counsel for Petitioners

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTION PRESENTED

Section 102(c) of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996, 8 U.S.C.

§ 1103 note (“IIRIRA”), grants the Secretary of Homeland Security (“Secretary”) the authority to “waive all

legal requirements”—including all federal, state, local,

and tribal laws, regulations, and legal requirements

deriving therefrom—that the Secretary, in the Secretary’s “sole discretion, determines necessary to ensure

expeditious construction of barriers and roads” in the

vicinity of the U.S. borders. The statute permits only

legal challenges alleging a violation of the Constitution

of the United States, and appellate review of a district

court decision is available solely through a writ of certiorari to this Court with no circuit court review. Id.

§ 102(c)(2)(C). Further, IIRIRA § 102(c) 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)(A).

This action presents a constitutional challenge to

the Secretary’s issuance of six waiver decisions, made

pursuant to IIRIRA § 102(c) in 2018 and 2019, waiving

more than forty federal laws—and all related state,

local, and tribal laws, regulations, and legal requirements deriving therefrom—which are otherwise applicable to the construction of 145-miles of steel-bollard

walls along the U.S.-Mexico border in Arizona, California, New Mexico, and Texas.

The question presented is:

Whether IIRIRA § 102(c)—which grants the Secretary of Homeland Security unfettered discretion to

QUESTION PRESENTED—Continued

waive all federal, and related state, local, and tribal

laws, regulations, and legal requirements, and sets

forth no standards or criteria to apply in determining

whether such waiver is necessary for expeditious border wall construction—violates the separation of powers, the non-delegation doctrine, and the Presentment

Clause of the Constitution of the United States.

iii

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT

Petitioners Center for Biological Diversity, Animal

Legal Defense Fund, Defenders of Wildlife, and Southwest Environmental Center each state that they are

not a subsidiary or affiliate of a publicly-owned corporation.

Respondents are the United States Department

of Homeland Security and Chad Wolf, in his official

capacity as Acting Secretary of the United States Department of Homeland Security.

STATEMENT OF RELATED CASES

•

Center for Biological Diversity, et al. v. Kevin

McAleenan, Acting Secretary of the Department of

Homeland Security, et al., Case No. 18-cv-0655,

U.S. District Court for the District of Columbia.

Judgment entered September 4, 2019.

•

Center for Biological Diversity, et al. v. Kevin

McAleenan, Acting Secretary of the Department of

Homeland Security, et al., Case No. 19-cv-2085,

U.S. District Court for the District of Columbia.

Dismissal entered September 13, 2019.

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

PARTIES TO THE PROCEEDING AND CORPORATE DISCLOSURE STATEMENT ...........

iii

STATEMENT OF RELATED CASES ..................

iii

TABLE OF CONTENTS ......................................

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

OPINIONS AND ORDERS BELOW....................

JURISDICTION ...................................................

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED...........................................

INTRODUCTION ................................................

STATEMENT OF THE CASE..............................

Congress Grants The Executive Increasingly

Broad Waiver Authority To Expedite Construction Of Border Walls And Largely Insulates The Waiver Decisions From

Judicial Review ..........................................

II.

Under President Trump’s Directive, DHS

Waives Myriad Federal And Other Laws

In Erecting New Border Wall Across The

Southern Border ........................................ 10

III.

Petitioners Challenge The Waivers In Federal District Court ..................................... 15

IV.

The District Court Upholds The Waivers

Against Constitutional Challenge, Relying

Exclusively On A Prior District Court Decision .......................................................... 16

TABLE OF CONTENTS—Continued

Page

REASONS FOR GRANTING THE WRIT............ 19

Because IIRIRA § 102(c) Empowers The Secretary To Make Fundamental Legislative

Decisions Regarding Which Laws Should

Apply And Where, This Is An Ideal Case For

The Court To Either Clarify The Intelligible

Principle Test Or, Alternatively, Adopt A

New Approach To Resolving When A Vast

Delegation Of Legislative Authority Violates

The Separation Of Powers ........................... 19

A. IIRIRA § 102(c) impermissibly delegates

quintessential legislative authority to

the Executive ....................................... 21

B. In view of Congress’s delegation of

boundless discretion to the Secretary

to decide which laws to comply with

and which to disregard, IIRIRA § 102(c)

must fail the intelligible principle test

if that test is to serve as more than a

rubber-stamp of any congressional

delegation ............................................ 25

C. Should the Court hold that IIRIRA

§ 102(c) passes the intelligible principle

test, then this case is an ideal vehicle to

reconsider more meaningful approaches

to enforcing the non-delegation doctrine

and separation-of-powers principles ...... 34

TABLE OF CONTENTS—Continued

Page

II.

The Court Should Resolve Whether § 102(c)

Improperly Grants The Executive The Authority To Unilaterally Repeal Existing

Laws In Violation Of The Presentment

Clause And Separation Of Powers ............ 36

III.

IIRIRA’s Severe Truncation Of Judicial

Review Exacerbates The Separation-OfPowers Violations And Underscores The

Need For This Court’s Review ................... 39

CONCLUSION..................................................... 42

APPENDIX

APPENDIX A

Judgment of the United States District Court

for the District of Columbia, CBD v.

McAleenan I (Sep. 4, 2019)............................... App. 1

Order Denying Plaintiffs’ Motion for Summary

Judgment (Sep. 4, 2019) ................................. App. 63

Order Dismissing Claims in Consolidated Case

(Sep. 11, 2019) ................................................ App. 65

APPENDIX B

Order Dismissing Claims, CBD v. McAleenan II

(Sep. 13, 2019) ................................................ App. 67

APPENDIX C

U.S. Const., art. I, §§ 1, 7 ................................... App. 69

vii

TABLE OF CONTENTS—Continued

Page

APPENDIX D

Illegal Immigration Reform and Immigrant Responsibility Act, 8 U.S.C. § 1103 note ............ App. 71

APPENDIX E

Department of Homeland Security, Determination Pursuant to Section 102 of the Illegal Immigration Reform and Responsibility Act of

1996, as Amended (Jan. 22, 2018) (New Mexico Waiver) ...................................................... App. 76

APPENDIX F

Department of Homeland Security, Determination Pursuant to Section 102 of the Illegal Immigration Reform and Responsibility Act of

1996, as Amended (Oct. 10, 2018) (Cameron

County, Texas Waiver) .................................... App. 83

APPENDIX G

Department of Homeland Security, Determination Pursuant to Section 102 of the Illegal Immigration Reform and Responsibility Act of

1996, as Amended (Oct. 11, 2018) (Hidalgo

County, Texas Waiver) .................................... App. 93

APPENDIX H

Department of Homeland Security, Determination Pursuant to Section 102 of the Illegal Immigration Reform and Responsibility Act of

1996, as Amended (May 15, 2019) (Arizona

Waiver) ......................................................... App. 101

viii

TABLE OF CONTENTS—Continued

Page

APPENDIX I

Department of Homeland Security, Determination Pursuant to Section 102 of the Illegal Immigration Reform and Responsibility Act of

1996, as Amended (May 15, 2019) (Imperial

County, California Waiver) .......................... App. 110

APPENDIX J

Department of Homeland Security, Determination Pursuant to Section 102 of the Illegal Immigration Reform and Responsibility Act of

1996, as Amended (May 15, 2019) (Tecate and

Calexico, California Waiver) ........................ App. 118

TABLE OF AUTHORITIES

Page

CASES

Buckley v. Valeo,

424 U.S. 1 (1976) .....................................................19

Clinton v. City of New York,

524 U.S. 417 (1998) ..................................... 36, 37, 38

Defenders of Wildlife v. Chertoff,

527 F. Supp. 2d 119 (D.D.C. 2007) ........ 17, 18, 19, 29

Dep’t of Transp. v. Ass’n of Am. R.R.,

135 S. Ct. 1225 (2015) .............................................24

Fletcher v. Peck,

7 Cranch 87 (1810) ..................................................22

Gundy v. United States,

139 S. Ct. 2116 (2019) ..................................... passim

Indus. Union Dep’t AFL-CIO v. Am. Petroleum Inst.,

448 U.S. 607 (1980) ........................................... 23, 29

INS v. Chadha,

462 U.S. 919 (1983) ........................................... 37, 39

J.W. Hampton, Jr. & Co. v. United States,

276 U.S. 394 (1928) .................................................31

Loving v. United States,

517 U.S. 748 (1996) .................................................23

Marbury v. Madison,

5 U.S. 137 (1803) .....................................................42

Marshall Field & Co. v. Clark,

143 U.S. 649 (1892) ........................................... 23, 24

Mertens v. Hewitt Associates,

508 U.S. 248 (1993) .................................................29

TABLE OF AUTHORITIES—Continued

Page

Mistretta v. United States,

488 U.S. 361 (1989) ......................................... passim

Paul v. United States,

140 S. Ct. 342 (2019) ......................................... 21, 36

Rodriguez v. United States,

480 U.S. 522 (1987) ........................................... 22, 31

Touby v. United States,

500 U.S. 160 (1991) ........................................... 27, 40

TVA v. Hill,

437 U.S. 153 (1978) ........................................... 21, 40

Watters v. Wachovia Bank, N.A.,

550 U.S. 1 (2007) .....................................................33

Wayman v. Southard,

23 U.S. 1 (1825) .......................................................21

Whitman v. American Trucking Ass’n,

531 U.S. 457 (2001) ........................................... 26, 28

CONSTITUTIONAL PROVISIONS

U.S. Const. art. I, § 1 ......................................... 6, 21, 36

U.S. Const. art. I, § 7 ............................................... 6, 36

STATUTES

Administrative Procedure Act, 5 U.S.C. § 551 et

seq. ....................................................................... 9, 11

American Indian Religious Freedom Act, 42

U.S.C. § 1996............................................................12

TABLE OF AUTHORITIES—Continued

Page

Antiquities Act, 54 U.S.C. § 320301 et seq. ................12

Bald and Golden Eagle Protection Act, 16 U.S.C.

§ 668 et seq...............................................................12

Clean Air Act, 42 U.S.C. § 7401 et seq. .......................11

Clean Water Act, 33 U.S.C. § 1251 et seq. ..................11

Consolidated Appropriations Act of 2008, Pub.

L. No. 110-161, § 564, 121 Stat. 2090

§ 102(b)(1) ................................................................10

Endangered Species Act of 1973, 16 U.S.C.

§ 1531 et seq...............................................................8

Farmland Protection Policy Act, 7 U.S.C. § 4201

et seq. .......................................................................11

Homeland Security Act of 2002, Pub. L. No. 107296, 116 Stat. 2135 ....................................................8

Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208,

110 Stat. 3009-554

§ 102(b)(1) ..................................................................8

§ 102(c).......................................................................9

Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as amended, 8 U.S.C.

§ 1103 note

§ 102 ..........................................................................2

§ 102(a) .................................................. 17, 29, 33, 40

§ 102(a)(1)(C) ...........................................................28

§ 102(b) .............................................................. 10, 16

xii

TABLE OF AUTHORITIES—Continued

Page

§ 102(b)(1) ................................................................10

§ 102(c)............................................................. passim

§ 102(c)(1) .......................................................... 18, 21

§ 102(c)(2)(C) .............................................................2

Immigration and Nationality Act, 8 U.S.C.

§ 1103(a)(5) (2018) ..................................................23

Native American Graves Protection and Repatriation Act, 25 U.S.C. § 3001 et seq. ........................12

National Environmental Policy Act, 42 U.S.C.

§ 4321 et seq...............................................................8

National Fish and Wildlife Act, 16 U.S.C. § 742a

et seq. .......................................................................12

National Park Service Organic Act, 16 U.S.C. § 1

et seq. .......................................................................12

Paleontological Resources Preservation Act, 16

U.S.C. § 470aaa et seq..............................................12

REAL ID Act of 2005, Pub. L. No. 109-113, Div.

B, Title I, 119 Stat. 231

§ 102(c).......................................................................9

§ 102(c)(2)(A) .............................................................9

§ 102(c)(2)(C) .............................................................9

Sex Offender Registration and Notification Act,

34 U.S.C. § 20913.....................................................28

xiii

TABLE OF AUTHORITIES—Continued

Page

Secure Fence Act of 2006, Pub. L. No. 109-367,

§ 3, 120 Stat. 2638 ...................................................10

OTHER AUTHORITIES

82 Fed. Reg. 8,793-97 (Jan. 25, 2017) .........................11

84 Fed. Reg. 4,949-50 (Feb. 20, 2019) .........................41

The Federalist No. 47 (James Madison) (Dover ed.,

2019) .................................................................. 19, 32

OPINIONS AND ORDERS BELOW

The two related judgments from which review is

sought are: (1) Center for Biological Diversity, et al. v.

Kevin McAleenan, Acting Secretary of the Department

of Homeland Security, et al., Case No. 18-cv-0655-KBJ

(D.D.C. Sep. 4, 2019) (“CBD v. McAleenan I”); and (2)

Center for Biological Diversity, et al. v. Kevin

McAleenan, Acting Secretary of the Department of

Homeland Security, et al., Case No. 19-cv-2085-KBJ

(D.D.C. Sep. 13, 2019) (“CBD v. McAleenan II”).

The opinion of the district court for CBD v.

McAleenan I appears at 2019 U.S. Dist. LEXIS 150576

(D.D.C. Sep. 4, 2019). Pet. App. 1-66.1 The district court,

in a separate order, dismissed CBD v. McAleenan II for

the same reasons set forth in CBD v. McAleenan I, preserving the rights of Petitioners to appeal both cases.

Pet. App. 67-68.

------------------------------------------------------------------

JURISDICTION

The district court entered final judgment on September 4, 2019 and September 11, 2019 for CBD v.

McAleenan I, and Sep. 13, 2019 for CBD v. McAleenan

II. Pet. App. 63-68. On Oct. 29, 2019, Chief Justice

Roberts extended the time within which to file a

The appendix to this petition is cited as “Pet. App. ___”. The

U.S. District Court for the District of Columbia’s docket No. 18cv-0655-KBJ pleadings are cited as “McAleenan I Dkt. ___”, and

docket No. 19-cv-2085-KBJ pleadings are cited as “McAleenan II

Dkt. ___”.

petition for a writ of certiorari to and including February 1, 2020. 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.”

------------------------------------------------------------------

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The relevant provisions of the United States Constitution, reproduced below and at Pet. App. 69-70, are:

•

Section 1 of Article I: “All legislative

Powers herein granted shall be vested in

a Congress of the United States”; and

•

Section 7 of Article I: “Every Bill which

shall have passed the House of Representatives and the Senate, shall, before it

become a Law, be presented to the President of the United States.”

Section 102 of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, as amended, 8

U.S.C. § 1103 note, reproduced below and at Pet. App.

71-75, 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 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) [of this

note], 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

(ii) not later than December 31,

2008, complete construction

of reinforced fencing along

the miles identified under

clause (i).

(i) In general.—In carrying out

this Section, the Secretary

of Homeland Security shall

consult with the Secretary

of the Interior, the Secretary

of Agriculture, States, local

governments, Indian tribes,

and property owners in the

United States to minimize

the impact on the environment, culture, commerce, and

quality of life for the communities and residents located near the sites at which

such fencing is to be constructed

(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. Any such decision

by the Secretary shall be effective

upon being published in the Federal

(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.

(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.

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.

------------------------------------------------------------------

INTRODUCTION

The Constitution is rooted in the simple and elegant vision that a system of separated governmental

powers, enforced by checks and balances, ultimately

safeguards our democracy and liberty. As part of that

structure, the Constitution vests in Congress alone the

distinct and exclusive authority to establish the relative priority of national policies and make law for the

country. Yet the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. § 1103 note

(“IIRIRA”), corrupts that carefully-wrought architecture. The statute endows an unelected executive official with quintessential legislative authorities: (1) the

policymaking power to unilaterally establish the relative priority of border wall construction against all

other legally protected public and private interests,

violating the non-delegation doctrine enshrined in

Article I, § 1 of the Constitution; and (2) the lawmaking

power to independently nullify the statutes securing

those interests without complying with bicameralism

and presentment procedures, violating the Presentment Clause. U.S. Const. art. I, § 7. Compounding this

constitutional infirmity, IIRIRA radically shields the

Executive from the Judiciary’s critical check against

the impermissible accretion of power in a single government branch. Indeed, the statute entirely eliminates ordinary circuit court review of Petitioners’

constitutional challenge, and instead makes discretionary review in this Court the sole means of appellate review of a district court decision.

Petitioners respectfully urge the Court to review

whether IIRIRA’s divestment of paradigmatic legislative authority to the Executive violates the separation

of powers. At stake is the fraught accumulation of legislative powers in the unitary Executive official, who

has discretionarily swept aside a vast breadth of public

and private liberties protected by federal, state, local,

and tribal statutes in the name of border wall construction—all without an iota of congressional guidance. In

particular, should the Court find that even the extraordinarily capacious and consequential § 102(c) waiver

authority embodies a sufficient “intelligible principle”

and otherwise passes constitutional muster under

current legal tests, Mistretta v. United States, 488 U.S.

361, 372-73 (1989), then those tests ring hollow, and

this Court’s consideration of alternative, more robust

approaches to enforcing the separation of powers is

plainly warranted. This case thus serves as an ideal

vehicle for the Court to re-affirm the vital roles of the

non-delegation doctrine and the Presentment Clause

as bulwarks of the separation of governmental powers

“essential to [the] preservation of [our] liberty.” Id. at

380.

------------------------------------------------------------------

STATEMENT OF THE CASE

Congress Grants The Executive Increasingly

Broad Waiver Authority To Expedite Construction of Border Walls And Largely Insulates The Waiver Decisions From Judicial

Review.

Enacted in 1996, IIRIRA was Congress’s first attempt to affirmatively address border wall construction at the U.S. borders.2 As originally enacted, IIRIRA

required the Attorney General to construct a limited

fourteen miles of reinforcement fencing at the San

Diego, California-Mexico border pursuant to IIRIRA

§ 102(b).3 Pub. L. No. 104-208, div. C, tit. I, § 102(b)(1),

110 Stat. 3009-554.4 For this specific project only, Congress granted the Attorney General the authority to

waive the enforcement of the Endangered Species Act,

16 U.S.C. § 1531 et seq., and the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., “to the extent

[the Attorney General] determine[d] necessary” to

References to “border wall” in this petition refer, per the

language of the Secretary’s Waivers, to any physical barrier project and related infrastructure, including the construction, installation, and upkeep of “physical barriers, roads, supporting

elements, drainage, erosion controls and safety features,” and corresponding excavation and site preparation. See, e.g., Pet. App.

80-81.

All subsequent undesignated statutory references herein

refer to IIRIRA (codified at 8 U.S.C. § 1103 note) unless otherwise

designated.

Under the 2002 Homeland Security Act, Congress transferred the responsibility for border barrier construction from the

Attorney General to the Secretary of the newly created Department of Homeland Security. Pub. L. No. 107-296, 116 Stat. 2135.

“ensure expeditious construction” of the fourteen-mile

project pursuant to § 102(c). Id. § 102(c).

In 2005, Congress vastly expanded the scope of the

§ 102(c) waiver power—the disputed provision here—

to include “all legal requirements” that the Secretary

of the Department of Homeland Security (“DHS”), 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. 109-113, Div. B, Title I § 102(c), 119 Stat. 231,

302, 306 (emphasis added). Congress set forth no criteria or standards by which the Secretary should determine which “legal requirements” need to be waived to

“ensure expeditious construction” of border infrastructure.

At the same time, Congress also radically curtailed judicial review of the Secretary’s waiver decisions as they applied to the fourteen-mile San Diego

project, including by: (1) granting federal district

courts the “exclusive jurisdiction to hear all causes or

claims arising from” the Secretary’s waiver decisions,

thus barring state court jurisdiction, id. § 102(c)(2)(A);

(2) constricting legal challenges “only” to those “alleging a violation of the Constitution,” thus eliminating

statutory causes of action, including Administrative

Procedure Act, 5 U.S.C. § 551 et seq., review of waiver

decisions, id.; and (3) eliminating ordinary appellate

review in the circuit courts of appeals so that those

aggrieved by waiver decisions may obtain such review

only by petitioning for a writ of certiorari in this Court.

Id. § 102(c)(2)(C).

Congress amended the project scope detailed in

§ 102(b) two additional times over as many years. In

2006, Congress expanded the provision for border wall

construction beyond the initial fourteen-mile San Diego

project, to encompass reinforced fencing “totaling approximately 850 miles.” Secure Fence Act of 2006, Pub. L.

No. 109-367, § 3, 120 Stat. 2638, 2639 § 102(b)(1)(A)(i)–

(v). In 2008, Congress directed the Secretary to undertake “reinforced fencing along not less than 700 miles

of the southwest border where fencing would be most

practical and effective,” including “priority areas” with

a construction deadline of December 31, 2008. Consolidated Appropriations Act of 2008, Pub. L. No. 110-161,

§ 564, 121 Stat. 2090, § 102(b)(1).

Prior to the current administration, the Secretary

exercised the § 102(c) waiver authority just five times

in a three-year period (2005 to 2008). See McAleenan I

Dkt. 16-1, 20. These waivers applied to projects encompassed within the 700-mile mandate Congress established in § 102(b). See McAleenan I Dkt. 16-1, 21. DHS

has fulfilled this existing mandate, stating that it had

constructed 700 miles of border barriers and was thus

in compliance with IIRIRA’s legal requirements. See

McAleenan I Dkt. 16-25, 4.

II.

Under President Trump’s Directive, DHS

Waives Myriad Federal And Other Laws

In Erecting New Border Wall Across The

Southern Border.

Shortly after his inauguration, President Trump

issued an executive order directing DHS to construct a

“secure, contiguous, and impassable physical barrier”

along the entirety of the nearly 2,000-mile-long U.S.Mexico border. Exec. Order No. 13767 § 3(e), 82 Fed.

Reg. 8,793, 8,794 (Jan. 25, 2017). In response, within

this three-year period and as of the date of this filing,

the administration’s various DHS Secretaries have

issued a total of fourteen waiver decisions pursuant to

§ 102(c), amounting to over 230 miles of executed and

planned construction at the southern border.

Six of the Secretary’s fourteen waiver determinations (“Waivers”) are the subject of this petition.

Through these Waivers, the Secretary has unilaterally

denied the protection of public and private interests

safeguarded by forty-three separate federal laws—and

innumerable tribal, state, and local laws deriving

therefrom—that would otherwise apply to 145 miles

of border wall construction traversing Arizona, California, New Mexico, and Texas. These waived laws range

widely and include, among many others:

•

The Administrative Procedure Act, 5

U.S.C. § 551 et seq., prohibiting arbitrary

and capricious agency action;

•

Public health and safety statutes, including the Clean Air Act, 42 U.S.C. § 7401 et

seq., and the Clean Water Act, 33 U.S.C.

§ 1251 et seq.;

•

Statutes protecting private farmland and

other property interests, including the

Farmland Protection Policy Act, 7 U.S.C.

§ 4201 et seq.;

•

Environmental and wildlife protection

statutes, such as the National Environmental Policy Act, the Endangered Species Act, and the Bald and Golden Eagle

Protection Act, 16 U.S.C. § 668 et seq.;

•

Laws safeguarding national parks and

fish and game conservation, including the

National Park Service Organic Act, 16

U.S.C. § 1 et seq., and the National Fish

and Wildlife Act, 16 U.S.C. § 742a et seq.;

•

Statutes designed to protect indigenous

civil rights and liberties, including the

Native American Graves Protection and

Repatriation Act, 25 U.S.C. § 3001 et seq.,

and the American Indian Religious Freedom Act, 42 U.S.C. § 1996; and

•

Archaeological and cultural preservation

laws, such as the Antiquities Act, 54

U.S.C. § 320301 et seq., and the Paleontological Resources Preservation Act, 16

U.S.C. § 470aaa et seq.

The challenged Waivers are: (1) the January 2018

New Mexico Waiver that waives twenty-five federal

statutes and all related state, local, and tribal laws

otherwise applicable to a twenty-mile border wall slicing through the highly sensitive Chihuahuan Desert,

Pet. App. 76-82 (“New Mexico Waiver”); (2) the October

2019 Texas Waivers that nullify twenty-eight federal

statutes and all related non-federal laws otherwise applicable to twenty-five miles of border wall affecting

public and private lands in Texas’s Lower Rio Grande

Valley, Pet. App. 83-100 (“Texas Waivers”); and (3) the

May 2019 Arizona and California Waivers that dispense with forty-three federal laws and all related

non-federal laws otherwise applicable to 100 miles of

border wall bisecting federally-protected lands in

Arizona and California, Pet. App. 101-109 (“Arizona

Waiver”) and Pet. App. 110-125 (“California Waivers”).

The consequences of the Waivers are profound—

both in tangible impacts to the environment and border communities, as well as impacts less tangible but

no less destructive to our democracy. For example, the

Secretary’s waiver of the Endangered Species Act allows DHS to entirely ignore the impacts of its border

wall construction on iconic endangered species such as

the jaguar, Mexican gray wolf, Sonoran pronghorn, and

Bighorn sheep, whose continued existence depends on

the freedom of cross-border migration to southern populations. McAleenan I Dkt. 16-10.

The Waivers also permit DHS to suspend the protective status, enforced by the National Park Service

Organic Act and other laws, of a tryptic of the country’s

most extraordinary natural resources that Congress

explicitly set aside from development: the Organ Pipe

Cactus National Monument, the first unit of the National Park System to be destroyed for border wall construction; the Cabeza Prieta National Wildlife Refuge,

an area essential to the preservation of the abutting

United Nations World Heritage site in Mexico; and

the San Pedro National Conservation Area, containing Arizona’s last free-flowing river that risks being

dammed as a consequence of wall construction.

McAleenan II Dkt. 8-1, 18-21.

In addition, the Secretary’s waiver of the Farmland

Protection Policy Act permits DHS to bypass requirements to minimize impacts on non-federal farmlands,

which include hundreds of private family farms bisected by wall construction. McAleenan I Dkt. 31, 17.

Further, the Waivers disavow DHS’s obligations to

preserve the rich archaeological sites on the border’s

public lands under the Antiquities Act, and to ensure

access to Native American religious sites in accordance

with the American Indian Religious Freedom Act.

McAleenan I Dkt. 16-6.

Critically, the Waivers also unprecedently override

state, local, and tribal interests protected by any nonfederal laws in any way related to or deriving from the

forty-three federal laws waived. See, e.g., Pet. App. 119

(Secretary waiving the following enumerated federal

states as well as “all federal, state, or other laws, regulations, and legal requirements of, deriving from, or related to the subject of ” such statutes). Finally, to add

insult to the range and sheer number of legally protected interests ignored, the Waivers further permit

the Secretary to shield agency action from public scrutiny. By waiving laws like the National Environmental

Policy Act, for example, the Secretary evades mandates

to analyze and disclose the wall’s adverse impacts on

communities and to facilitate substantive public input,

thereby undermining core democratic values that also

undergird our system of government. McAleenan I

Dkt. 16-11. Construction and maintenance of the

Waivers’ 145-mile wall project remain ongoing.

III. Petitioners Challenge The Waivers In Federal District Court.

Petitioners Center for Biological Diversity, Animal

Legal Defense Fund, Defenders of Wildlife, and Southwest Environmental Center are environmental conservation and wildlife protection organizations dedicated

to ensuring that environmental and other statutes are

properly enforced. McAleenan I Dkt. 16-1, 44-45. Members of the Petitioner organizations regularly visit and

have professional, recreational, and other interests in

the lands and waters affected by the Waivers. Id.

In March 2018, Petitioners sued the Secretary

and DHS in the U.S. District Court for the District of

Columbia, seeking to invalidate the New Mexico and

Texas Waivers and require the Secretary to comply

with all applicable laws in constructing the border

wall.5 See CBD v. McAleenan I, Case. No. 18-cv-0655KBJ (D.D.C. Sep. 4, 2019). Separately, in October 2018,

Petitioners Center for Biological Diversity, Animal Legal Defense Fund, and Defenders of Wildlife sued the

Secretary and DHS in the same venue, seeking to invalidate the Arizona and California Waivers and require the Secretary to comply with all applicable laws

with respect to those border wall projects. See CBD v.

McAleenan II, Case No. 19-cv-2085-KBJ (D.D.C. Sep.

13, 2019). These two cases were related. McAleenan II

Dkt. 6.

Plaintiffs filed two cases, one regarding the New Mexico

Waiver and separately the Texas Waivers, that were consolidated

under Case No. 18-cv-0655-KBJ (CBD v. McAleenan I).

The complaints alleged that Congress’s § 102(c)

delegation violates the separation of powers as implemented through the Constitution’s non-delegation doctrine, Presentment Clause, and Take Care Clause.

Petitioners also alleged that the Waivers were issued

ultra vires because DHS had already fulfilled § 102(b)’s

700-mile mandate prior to the current administration’s

Waivers, and thus DHS has no further authority to

grant waivers for any additional border construction

beyond the § 102(b) scope. McAleenan I Dkt. 16-1, 26. In

response to the ultra vires claim, the government argued that its waiver authority was not restricted to 700

miles along the southern border but, rather, applied to

any activities along the entirety of all U.S. borders that

DHS desired to undertake based on the asserted need

to deter illegal immigration. Id. Dkt. 27, 19-24.

IV. The District Court Upholds The Waivers

Against Constitutional Challenge, Relying

Exclusively On A Prior District Court Decision.

The district court resolved CBD v. McAleenan I on

summary judgment in favor of the government, holding that § 102(c) does not violate, as relevant here,

the Constitution’s separation-of-powers principles, the

non-delegation doctrine, and the Presentment Clause.6

The district court similarly dismissed Petitioners’ Take

Care Clause claim as “another iteration of Plaintiffs’ Presentment

Clause and non-delegation doctrine arguments, and it fails for the

same reasons.” Pet. App. 59. Petitioners do not raise the Take

Care Clause claim in this petition.

Pet. App. 46-47.7 The district court dismissed CBD v.

McAleenan II for the reasons set forth in the CBD v.

McAleenan I opinion, with the understanding that the

parties’ appeal rights remain preserved. Pet. App. 6768. The district court relied entirely upon the reasoning of a 2007 district court case that upheld the

§ 102(c) waiver authority as constitutional, even

though the government had not argued in the 2007

case that its waiver authority extended beyond the

700-mile area Congress had delineated in the statute.

Pet. App. 51-59 (citing Defenders of Wildlife v. Chertoff,

527 F. Supp. 2d 119 (D.D.C. 2007) (“Chertoff ”)).

Regarding the non-delegation claim, the district

court held that Congress furnished the Secretary with

an adequate “intelligible principle” for a constitutional

delegation. Pet. App. 54-56 (citing Mistretta, 488 U.S.

at 372-73). The district court “[saw] no reason to diverge” from the prior court’s reasoning that, applying

the intelligible principle test, (1) the “general policy”

for the delegated authority is found in the statute’s

purpose in § 102(a), which is to “expeditiously ‘install

additional physical barriers and roads . . . to deter illegal crossings in areas of high entry,’ ” Pet. App. 58

(quoting § 102(a)); and (2) the “boundaries” of the

delegated authority are found in § 102(c) whereby

“the Secretary may waive only those laws that he

In a separate Order, the Court made clear that it was also

dismissing the claims in the consolidated case on the same basis.

Pet. App. 63-64.

determines ‘necessary to ensure expeditious construction.’ ” Pet. App. 55 (quoting § 102(c)(1)).

Regarding the Presentment Clause claim, the district court likewise determined that § 102(c) was constitutional because the statute does not “ ‘alter the text

of any statute, repeal any law, or cancel any provision,

in whole or part.’ ” Pet. App. 53 (quoting Chertoff, 527

F. Supp. 2d at 124).

Regarding the Petitioners’ ultra vires claim that

the Waivers were issued for border wall activities outside § 102(b)’s 700-mile project scope, the district court

concluded that it lacked jurisdiction to review that

claim because IIRIRA restricts review to constitutional claims. Thus, as now construed by DHS, the

Executive wields the authority to waive any and all

federal, state, local, or tribal laws in perpetuity as applied to anywhere in the vicinity of the U.S. borders,

based only on DHS’s unsupported and unreviewable

assertion that such waiver is necessary for expedited

wall construction. It is that extraordinary, unprecedented executive encroachment on core legislative authority that is at issue in this petition.8

-----------------------------------------------------------------8

Although the district court relied on the Chertoff ruling, the

court failed to acknowledge the fundamental difference in the

cases. Indeed, critical to Chertoff was that Congress had confined

the waiver authority to a specified geographical scope and had

not even contemplated a scenario where DHS would exceed

§ 102(b)’s 700-mile mandate. Chertoff, 527 F. Supp. at 128. That

understanding has now been jettisoned and, with it, any arguable

limitation on § 102(c)’s exercise.

REASONS FOR GRANTING THE WRIT

Because IIRIRA § 102(c) Empowers The

Secretary To Make Fundamental Legislative

Decisions Regarding Which Laws Should

Apply And Where, This Is An Ideal Case

For The Court To Either Clarify The Intelligible Principle Test Or, Alternatively,

Adopt A New Approach To Resolving When

A Vast Delegation of Legislative Authority

Violates The Separation Of Powers.

The Constitution establishes a tripartite system

of government that intentionally diffuses and distinguishes power among its three component branches.

This carefully-wrought architecture was designed to

prevent “[t]he accumulation of all powers, legislative,

executive, and judiciary, [which] in the same hands

may justly be pronounced the very definition of tyranny.” The Federalist No. 47 at 235 (James Madison)

(Dover ed., 2019). Specifically, the Framers assigned

the authority “to make laws” to Congress and, separately, charged the Executive with the “duty of [the

laws’] enforcement.” Buckley v. Valeo, 424 U.S. 1, 139

(1976). Safeguarding the partition of those distinct

powers between the two political branches, the nondelegation doctrine has long “mandate[d] that Congress generally cannot delegate its legislative power to

another Branch.” Mistretta, 488 U.S. at 372.

IIRIRA § 102(c) violates the Constitution under

any legitimate formulation of the non-delegation doctrine. First, the IIRIRA delegation contravenes an

originalist understanding of the non-delegation

doctrine because Congress impermissibly transferred

to the Secretary the quintessential legislative authority of policymaking, whereby the Secretary establishes

the relative priority of competing protected interests.

Second, under this Court’s more recent conceptions of

Congress’s delegation power embodied in the prevailing “intelligible principle” test, Mistretta, 488 U.S. at

372-73, § 102(c) is unconstitutional because it fails to

provide any meaningful guidance to restrain and direct the Secretary’s exercise of this exceptionally broad

and paradigmatically legislative delegated authority.

IIRIRA should be invalidated under either formulation

of the non-delegation doctrine.

However, if, as the district court held, the extraordinarily capacious § 102(c) waiver authority survives

the intelligible principle test, then that test as presently understood fails to provide any material limitations on congressional delegations.

This petition thus provides an ideal vehicle for the

Court to consider more vigorous approaches to vast

delegations of legislative power to the Executive, exemplified in § 102(c). Specifically, in expressing concern about the intelligible principle test’s capacity to

safeguard the separation of powers, both Justices Gorsuch and Kavanaugh, supported by other members of

the Court, recently discussed alternative approaches

to the non-delegation doctrine based on the originalist

principles prohibiting the delegation of quintessential

legislative powers to the Executive. See, e.g., Gundy v.

United States, 139 S. Ct. 2116, 2139-40 (2019) (Gorsuch, J., dissenting, joined by Roberts, C.J. and

Thomas, J.); id., 139 S. Ct. at 2130-31 (Alito, J., concurring); Paul v. United States, 140 S. Ct. 342 (2019)

(Kavanaugh, J., concurring). Under such traditional

approaches, IIRIRA raises grave separation-of-powers

concerns because Congress divested archetypal policymaking power to an unelected Executive official. Accordingly, this case presents a suitable opportunity for

the Court to devise a more robust approach to the nondelegation doctrine that recognizes its essential role in

preserving the separation of powers.

A. IIRIRA § 102(c) impermissibly delegates

quintessential legislative authority to the

Executive.

1. The Constitution provides that “[a]ll legislative Powers” are vested in Congress alone. U.S. Const.,

art. I, § 1. The non-delegation doctrine bars Congress

from “transfer[ring] to another branch ‘powers which

are strictly and exclusively legislative.’ ” Gundy, 139

S. Ct. at 2119 (quoting Wayman v. Southard, 23 U.S. 1

(1825)). One fundamental legislative power is “establish[ing]” the “relative priority [of policies] for the

Nation,” a function that is the “exclusive province of

the Congress.” TVA v. Hill, 437 U.S. 153, 194 (1978).

IIRIRA impermissibly delegates to the Executive

the quintessential legislative power of prioritizing

competing public policies through the “authority to

waive” any laws that the Secretary “determines necessary” for expeditious wall construction. § 102(c)(1).

This sweeping provision grants the Executive the

hallmark legislative functions of: (1) considering the

relative prioritization of expeditiously constructing the

border wall against the universe of all other legally

protected public and private interests, including those

which fall entirely outside the Secretary’s zone of expertise (e.g., civil rights, public health, environmental)

and lawful jurisdiction (interests protected by state,

local, and tribal laws); and (2) making the major policy

decision of choosing which laws to disregard—and

which to comply with—in pursuing border barrier construction.

In short, Congress has abdicated to the Secretary

the power exclusively vested to the Legislature to

“[d]ecid[e] what competing values will or will not be

sacrificed to the achievement of a particular objective,”

which is “the very essence of legislative choice.” Rodriguez v. United States, 480 U.S. 522, 526 (1987) (emphasis added). At base, it is constitutionally untenable

for an Executive official to unilaterally dispense with

any and all safeguards and rights already established by Congress (as well as state, local, and tribal

governments) in other statutes; doing so transfers to

the Executive the fundamental legislative power “to

prescribe general rules for the government of society.”

Fletcher v. Peck, 7 Cranch 87, 136 (1810).

Petitioners do not dispute that Congress possesses

the legal authority to enact legislation that prioritizes

border wall construction above any other legally protected interests—or, for that matter, over all other

such interests. However, Congress did not legislate any

such prioritization here. Instead, Congress improperly

punted that distinctive and ultimately difficult legislative function of choosing which interests to subjugate

to border wall construction to the Executive Branch

(and not even an elected official within that branch),

amounting to the “delegation of power to make the law,

which . . . cannot be done.” Marshall Field & Co. v.

Clark, 143 U.S. 649, 693-94 (1892) (citation omitted).9

See also Indus. Union Dep’t AFL-CIO v. Am. Petroleum

Inst., 448 U.S. 607, 685 (1980) (Rehnquist, J., concurring) (“important choices of social policy” must be made

by Congress and not delegated to the Executive).

2. Additionally, the IIRIRA delegation undermines the separation of powers by alienating the Constitution’s ultimate check on government power: the

citizenry. “Article I’s precise rules of representation,

member qualifications, bicameralism, and voting procedure make Congress the branch most capable of responsive and deliberate lawmaking.” Loving v. United

States, 517 U.S. 748, 757-58 (1996). IIRIRA’s unlawful

delegation bypasses this extensive lawmaking process

by transferring that power solely to an unelected Executive official—and eliminates the people’s ability to

Irrespective of this case’s outcome, the Secretary still maintains the independent authority to undertake wall construction

pursuant to the 1953 Immigration and Nationality Act (“INA”), 8

U.S.C. § 1103(a)(5) (2018), which grants the Secretary the independent discretion, absent congressional directive, to pursue border barrier construction through the agency’s “power and duty to

guard” U.S. borders “against the illegal entry of aliens.” Id. The

Executive Branch relied on this INA authority to construct border

barriers prior to the use of an IIRIRA waiver. The INA contains

no waiver provision, and exercising that authority will not raise

the significant constitutional concerns of IIRIRA.

ensure responsive and responsible lawmaking through

their elected representatives. Further, the delegation

of policymaking power muddies the public’s ability to

hold either political branch democratically accountable, as “opportunities for finger-pointing” over adverse

policies “threaten to disguise responsibility for [policy]

decisions,” Gundy, 139 S. Ct. at 2135 (Gorsuch, J., dissenting) (internal quotations omitted), and enables

both branches to “wield power without owning up to

the consequences.” Dep’t of Transp. v. Ass’n of Am. R.R.,

135 S. Ct. 1225, 1234 (2015) (Alito, J., concurring).

3. Positing an originalist approach to adjudicating Congress’s improper divestment of its responsibilities, Justice Gorsuch has opined that the fundamental

question in assessing the constitutionality of a congressional delegation should be: “[D]id Congress, and

not the Executive Branch, make the policy judgments?”

Gundy, 139 S. Ct. at 2141 (Gorsuch, J., dissenting). See

infra II(C). Here, the answer is indisputably “no.” The

Executive, and not Congress, is making the overarching policy judgment as to which of the myriad legally

protected national, state, local, and tribal interests are

to be sacrificed in the name of border wall construction.

The Court should clarify that, whatever the outer

boundary of a permissible delegation may be, affording

the Executive this species of unchecked (and unreviewable) policymaking power unquestionably crosses the

constitutional line. See Marshall Field, 143 U.S. at 692

(“That congress cannot delegate legislative power to

the President is a principle universally recognized as

vital to the integrity and maintenance of the system of

government ordained by the Constitution.”).

B. In view of Congress’s delegation of

boundless discretion to the Secretary to

decide which laws to comply with and

which to disregard, IIRIRA § 102(c) must

fail the intelligible principle test if that

test is to serve as more than a rubberstamp of any congressional delegation.

In addition to violating originalist principles governing congressional delegations, § 102(c) also fails the

Court’s more permissive intelligible principle test. This

case is thus an appropriate vehicle for establishing

that, when properly applied, the Court’s prevailing “intelligible principle” doctrine may serve as a meaningful check on delegations run amok, rather than a

rubber-stamp exercise with a preordained outcome of

constitutionality. While affirming that Congress cannot forfeit its legislative powers to the Executive, the

Court has also acknowledged that substantial delegation is necessary in the modern administrative state.

Congress may “obtain[ ] the assistance of its coordinate

Branches,” but only if it “lay[s] down by legislative act

an intelligible principle” which “clearly delineates the

general policy” and “boundaries of th[e] delegated authority.” Mistretta, 488 U.S. at 372-73 (internal quotations omitted).

Critically though, all delegations are not created

equal; the strictness of the intelligible principle tightens and the level of agency deference recedes with the

breadth of delegated power. See Whitman v. Am. Trucking Assn’s, 531 U.S. 457, 475 (2001) (“[T]he degree of

agency discretion that is acceptable” under the intelligible principle test “varies according to the scope of the

power congressionally conferred.”). The non-delegation

doctrine thus does not—and should not—prohibit a

robust administrative state. Rather, where Congress

seeks to grant the Executive broad and important authority—exemplified in IIRIRA’s power to waive any

statutorily-protected interest in perpetuity as applied

to a vast and undefined geographical scope—concerns

for liberty are heightened, and Congress is thus required to provide more detailed instruction to channel

the broad authority in keeping with legislative intent.

Any such intelligible principle is absent in § 102(c).

1. IIRIRA fails to provide any concrete intelligible principle for the Secretary to determine which laws

to ignore and which to follow. IIRIRA § 102(c) states:

“[T]he 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.”

What guidance has Congress furnished to circumscribe the Secretary’s discretion to decide which laws

are “necessary” to ignore in order to ensure the expeditious construction of border barriers? The answer is:

none. Congress proffered no factors, standards, criteria,

or any other grounds on which to base a waiver determination. Rather, the Secretary has been afforded full

and “sole discretion” to decide whether compliance

with every single law in the United States code, and

every single statute and legal requirement enacted by

any state, local, or tribal legislature, should be waived

to “ensure expeditious construction.” § 102(c).

Nor is the Secretary required even to explain why

the enforcement of any one particular law is detrimental to expeditious border wall construction. Inevitably, this has resulted in the Secretary’s issuance of

an ever-expanding compendium of waived federal statutes—along with all associated non-federal laws—for

which the Secretary need not provide explanation or

be held accountable. At base, if such an unrestricted

and consequential delegation as IIRIRA § 102(c) does

not violate the intelligible principle test, then no delegation does.

This paucity of congressional instruction is inexcusable, especially in light of Congress’s prior history

of providing robust intelligible principles for similarly

broad and significant delegations. Absent in the

§ 102(c) delegation is substantive guidance that exists

for past constitutional delegations, such as: (1) enumerated factors and criteria to consider when weighing competing interests, see Touby v. United States, 500

U.S. 160, 166-67 (1991) (intelligible principle for setting drug designations included congressional mandate that the agency consider at least three of eight

codified factors); or (2) express limitations on the kinds

of factors that can be taken into account in making a

decision, see Mistretta, 488 U.S. at 374-75 (intelligible

principle for establishing sentencing guidelines

included Congress’s setting of explicit restrictions on

range of minimum and maximum sentences, grade of

offense, nature and degree of harm, and demographics

of offender). Indeed, Congress did not even mandate

that the Secretary seek expert guidance and input

through fact-finding hearings, public comment processes, intra-agency consultation, or other mechanisms

to inform the Secretary’s waiver decision, see Whitman,

531 U.S. at 475 (constitutional delegation as Congress

required agency to undertake an extensive technical

expert consultation and extensive public administrative rulemaking process for agency’s setting of air

pollutant standards).10 The Court’s past precedents

therefore support the conclusion that IIRIRA runs

afoul of the non-delegation doctrine; it provides none

of the important guard rails that Congress mounted

for past constitutional delegations.11

Respondents have consistently maintained that the consultation provision in § 102(a)(1)(C) does not apply prior to the

Secretary’s issuance of the waiver decision, thus stripping even

that pro forma consultation of its utility to inform the Secretary

of the choice of waiving laws and weighing competing interests.

See McAleenan I Dkt. 21-1, 28.

IIRIRA § 102(c) raises delegation concerns that implicate

a far broader set of interests than those at issue in Gundy. In

Gundy, the disputed delegation involved the Attorney General’s

authority to craft registration requirements for sex offenders convicted prior to the enactment of the Sex Offender Registration and

Notification Act, 34 U.S.C. § 20913(d). Here, the application of the

vast IIRIRA waiver authority affects potentially millions of members of the public who live on or anywhere near the border and

whose legal rights and interests protected by statute may now be

eviscerated with the stroke of an executive officer’s pen.

2. The dearth of any intelligible principle is further evident in the absence of a judicial standard that

a court could apply—even assuming the existence of

judicial review of arbitrary applications of IIRIRA,

which Congress eliminated—to determine whether the

Secretary acted within § 102(c)’s bounds. Where an intelligible principle exists, it “ensures that courts . . . reviewing the exercise of delegated legislative discretion

will be able to test that exercise against ascertainable

standards.” Indus. Union Dep’t AFL-CIO, 448 U.S. at

686 (Rehnquist, J., concurring). Here, courts have no

meaningful standards to judge the Secretary’s exercise

of the essentially boundless § 102(c) waiver authority.

To be sure, citing Chertoff, the district court held

that the term “necessary to ensure expeditious construction” in § 102(c) provided sufficient “ ‘boundaries’ ”

of an intelligible principle. Pet. App. 55 (quoting

Mistretta, 488 U.S. at 372-73).12 But that cannot be the

case. As illustrated by the vast number of laws that

have been waived for no apparent rhyme or reason, let

alone explanation, the term “necessary” has a plethora

of possible meanings. It could refer to “economic”

The district court also concluded that § 102(a) provided the

“purpose” underlying an intelligible principle, whereby the Secretary shall do what is “necessary” to “deter illegal crossings in areas of high illegal entry.” Id. But this term faces the same problem

as the § 102(c) text in lacking any criteria, principles, or standards to guide the Secretary’s waiver power. Further, this Court

has held that broad and sweeping statements about “a statute’s

‘basic purpose’ are . . . inadequate to overcome the words of its

text regarding the specific issue [the delegation encompassed in

the § 102(c) waiver authority] under consideration.” Mertens v.

Hewitt Associates, 508 U.S. 248, 261 (1993) (emphasis deleted).

necessity, “administrative” necessity, “political” necessity or any other category that the Secretary deems

“necessary” for any reason or, seemingly, no legitimate

reason at all. Indeed, laws that are merely designed to

publicly disclose what the Executive is doing and why

can be waived under this contentless standard on the

Secretary’s asserted grounds that it is “necessary” to

keep the public in the dark. In short, since “necessary”

means whatever a particular DHS Secretary desires it

to mean in the Secretary’s “sole discretion,” the term

effectively means nothing at all.

The term “expeditious” is equally devoid of any

real meaning. What are the time limitations to determine whether the enforcement or application of a particular federal, state, local, or tribal law must be

waived to ensure “expeditious” construction of a barrier or a road—e.g., a month, a week, an hour, or a minute? And how is the Secretary even to evaluate

whether compliance with a particular environmental,

civil rights, criminal, open government, or any other

statute—the vast majority of which the Secretary has

no expertise in—will have a substantial or a de minimis effect on construction timing?

The lack of any intelligible answer to these questions means that, as both a legal and practical matter,

the Secretary is empowered to waive compliance with

otherwise applicable laws—even where there will not

be the slightest real-world impact on construction activities but there will be the needless sacrifice of vitally

important public and private interests impacting thousands if not millions of people. See infra I(B)(3). As this

Court has observed, virtually “no legislation pursues

its purposes at all costs,” Rodriguez, 480 U.S. at 52526, yet the IIRIRA delegation fails to put any outer

bounds on those costs and the Secretary’s determination. Accordingly, the conclusion is unavoidable that

Congress actually imposed no restraint whatsoever on

the Secretary’s exercise of pure policymaking authority, much less an “intelligible” one.

3. Finally, Congress’s lack of any meaningful

instruction is highly problematic given the breadth,

importance, and consequence of the Secretary’s waiver

authority. See J.W. Hampton, Jr. & Co. v. United States,

276 U.S. 394, 406 (1928) (the amount of required congressional guidance depends on the “extent and character” of the power conferred). IIRIRA § 102(c)

effectively grants the Secretary a carte blanche to (1)

unilaterally choose to disregard compliance with any

and all laws—including state, local, and tribal laws

that the Secretary’s waiver declarations do not even

bother to expressly enumerate but are deemed to

somehow “derive from” or be “related to the subject of ”

the waived federal laws, see Pet. App. 81—to pursue (2)

any kind of border construction (such as infrastructure

that may be only tenuously connected to deterring immigration) (3) at any time and in perpetuity (without

any sunset date) (4) anywhere within the border’s “vicinity”—which, given the Secretary’s position as sustained by the district court, could be dozens or even

hundreds of miles from any U.S. border.

The ability of the Secretary to invoke this vast

power in an arbitrary and, indeed, totally uniformed

manner is self-evident. While the Secretary may possess expertise in areas of immigration and border security, the waiver decision requires considering the

universe of all other statutorily-protected public and

private interests. Because the Secretary has no expertise or even experience in the immense array of interests, the Secretary has no discernible means of

assessing whether those interests can be met while

border activities and construction may proceed.

For example, how is the Secretary equipped to determine the necessity of waiving the American Indian

Religious Freedom Act or the Paleontological Resources Preservation Act, for the Arizona Waiver border project, and how would complying with those laws

hinder the necessary construction of barriers or roads?

The affected public will never know notwithstanding

the fact that, invoking the delegated power in § 102(c),

the Secretary waived any compliance with those laws

designed to safeguard interests vital to indigenous

peoples and the nation as a whole. Pet. App. 101-117.

Further, the blanket waiver authority means that

DHS Secretaries can even waive laws with which

they themselves are personally required to comply.

This means the Secretary could waive minimum wage

statutes, child labor prohibition laws, anti-sexual and

-racial discrimination acts, and even criminal laws.

Not only does this invite flagrant abuses of power, but

it also impermissibly unites the “legislative and executive powers . . . in the same person,” The Federalist

No. 47, at 236 (James Madison) (Dover ed., 2019), thus

abolishing the separation of powers when the enforcer

and law-maker are one.

Moreover, in permitting the Secretary to waive

“all legal requirements,” § 102(c) (emphasis added),

IIRIRA empowers the Secretary, without any justification (or even express acknowledgment of what is being

waived), to override every state, local, or tribal law

with which the Secretary would prefer not to comply.

See Pet. App. 106-109 (Arizona Waiver waiving “in

their entirety” forty-three statutes, including “all federal, state, or other laws, regulations, and legal requirements of, deriving from, or related to the subject

of ” the enumerated statutes). This allocation of unchecked power to a single federal executive official

threatens the country’s foundational system of federalism, whereby “an administrative agency’s power to

pre-empt state law . . . affects the allocation of powers

among sovereigns.” Watters v. Wachovia Bank, N.A.,

550 U.S. 1, 43-44 (2007) (Stevens, J., joined by Roberts,

C.J. and Scalia, J., dissenting).

Finally, the vast scope of the IIRIRA waiver authority is magnified not only by the truly limitless universe of laws that may be waived, but also the immense

geographical scope to which it applies in perpetuity.

According to § 102(a), border projects subject to the

waiver authority are permitted anywhere in the “vicinity of the United States border”—a phrase that is defined nowhere in IIRIRA and, as construed by DHS

and upheld by the court below, leaves entirely open

to the Secretary’s unreviewable interpretation the

appropriate distance from a U.S. border to execute border construction.

For example, Customs and Border Patrol, a component agency of DHS, operates anywhere within 100

miles of all U.S. borders—where nearly two out of three

people in this country reside. McAleenan II Dkt. 8-1.

Under the ruling below, therefore, DHS could invoke

the power to waive all laws to unilaterally build roads

and erect barriers anywhere inside the 100-mile border zone—which includes, e.g., not only cities near the

Mexico border (such as San Diego) but also Washington, D.C., San Francisco, New York City, and the entirety of Hawaii—so long as the Secretary invokes the

§ 102(c) waiver authority.

In sum, the boundlessness of the Secretary’s

waiver authority, and the breadth of individual liberties and public and private interests it may infringe

(and has infringed), demands a heightened intelligible

principle to cabin the Secretary’s waiver decisions. Yet

none exists here, and IIRIRA necessarily fails even

this permissive non-delegation doctrine test.

C. Should the Court hold that IIRIRA

§ 102(c) passes the intelligible principle

test, then this case is an ideal vehicle to

reconsider more meaningful approaches

to enforcing the non-delegation doctrine

and separation-of-powers principles.

If the court below correctly upheld § 102(c)’s

open-ended and unguided policymaking authority as

passing the intelligible principle test, then the test

means nothing, and the Court is disserving the separation of powers by paying lip service to this prevailing

legal test. Because of the egregiousness of the IIRIRA

delegation, this case presents an ideal vehicle to reconsider the Court’s prevailing intelligible principle test

to safeguard the non-delegation doctrine. That is because IIRIRA not only raises many of the same concerns regarding an essentially limitless grant of

authority to the Executive that has recently been

voiced by many members of the Court but, at the same

time, the statute implicates a far broader set of public

and private interests and competing policy concerns

than, e.g., the statute at issue in Gundy. Although,

should the Court grant review, merits briefing would

address the parameters of any new framework, members of the Court have recently suggested alternative

approaches that warrant further consideration.

In his dissent in Gundy, Justice Gorsuch proposed

the following analysis building upon historical understandings of the non-delegation doctrine to assess the

validity of a congressional delegation:

[1] Does the statute assign to the executive

only the responsibility to make factual findings? [2] Does it set forth the facts that the

executive must consider and the criteria

against which to measure them? [3] And most

importantly, did Congress, and not the Executive Branch, make the policy judgments?

139 S. Ct. at 2141 (Gorsuch, J., dissenting) (numbers

inserted). Expanding on Justice Gorsuch’s analysis,

Justice Kavanaugh advocated for the development of a

“nondelegation principle for major questions,” supporting the approach of prohibiting those delegations

where Congress “expressly and specifically delegate[s]

to the agency the authority both to decide the major

policy question and to regulate and enforce.” Paul, 140

S. Ct. 342 (Kavanaugh, J., concurring).

Under these alternative approaches, IIRIRA fails:

the Executive, and not Congress, has been empowered

to both make and enforce the major policy decision as

to which legally protected interests and rights are to

be nullified; and, as discussed, there are no meaningful

criteria the Secretary must apply in making such archetypal legislative decisions. The statute thus highlights the precise concerns, recently raised by members

of this Court, about transforming the Executive into “a

vortex of authority that was constitutionally reserved

for the people’s representatives in order to protect

their liberties.” Gundy, 139 S. Ct. at 2142 (Gorsuch, J.,

dissenting).

II.

The Court Should Resolve Whether § 102(c)

Improperly Grants The Executive The Authority To Unilaterally Repeal Existing Laws

In Violation Of The Presentment Clause And

Separation Of Powers.

The authority to legislate is entrusted solely to

Congress. U.S. Const. art I, §§ 1, 7. The Constitution

forbids the Executive to “enact, to amend, or to repeal

statutes.” Clinton v. City of New York, 524 U.S. 417, 438

(1998). The “[a]mendment and repeal of statutes, no

less than enactment, must conform with” the extensive

bicameralism and presentment requirements of Article I, INS v. Chadha, 462 U.S. 919, 954 (1983), which

the Framers considered to be “bulwarks of liberty.”

Gundy, 139 S. Ct. at 2134 (Gorsuch, J., dissenting).

IIRIRA § 102(c) grants the Secretary the legislative authority to unilaterally repeal any existing law

without complying with the Constitution’s dual presentment and bicameralism procedures, thus surpassing even Congress’s law-making power authorized

under the Constitution. The Secretary’s Waivers function as partial repeals of or amendments to the underlying laws being waived. In practical effect, the

Secretary has grafted onto the forty-three waived federal laws a new provision stating that “at my discretion, nothing in this law in its entirety, or any law

deriving from or related to the subject of this law, shall

apply to border wall construction” in the applicable

states. See, e.g., Pet. App. 106-109 (waiving “in their

entirety” forty-three statutes as applied to the Arizona

Waiver border wall project). Such an amendment alters each of those statutes’ “legal force or effect” as

applied to the construction of the Waivers’ border barriers. Clinton, 524 U.S. at 438.

Any attempt to minimize the § 102(c) waivers as

narrowly applied to individual border projects must be

rejected because the cumulative effect of the § 102(c)

waivers amounts to significant repeals of dozens of underlying statutes. It bears emphasizing that § 102(c)

waivers now apply to approximately one-third of the

entire U.S.-Mexico border, with respect to nearly fifty

federal laws and innumerable state, local, and tribal

laws. Taken together, the Secretary’s unilateral decision to issue the Waivers, along with new § 102(c)

waivers that are sure to come, effectively repeal the

application of an ever-increasing number of federal

statutes as applied to an ever-expanding number of

projects.13

The § 102(c) waiver power granted to the Secretary is not materially different from the unconstitutional power granted to the President by the Line Item

Veto Act. Clinton, 524 U.S. 417. The Line Item Veto Act

granted the President the authority to unilaterally

cancel entire portions of duly enacted statutes concerning statutory spending and taxes, which effectively

permitted the President to “amend” the underlying

laws. Id. at 438, 448-49. The Constitution prohibits a

complete cancellation of a provision, as in the Line

Item Veto Act, just as it prohibits the executive amendment of an enacted law, as is the case with the Waivers

and their effective amendment to existing laws.

In fact, the Secretary’s waiver discretion is far

broader than the President’s cancellation authority invalidated in Clinton. There, Congress provided guard

rails for the Line Item Veto authority, which could

As a concrete example, the existing § 102(c) waivers have,

collectively, repealed significant swaths of the Endangered Species Act because they have “in both legal and practical effect”

denied the Act’s vital application to and protection of the nearly

100 endangered and threatened species at the borderlands.

McAleenan I Dkt. 8-1, 40; Clinton, 524 U.S. at 438.

apply only to specific spending and tax items and was

required to meet certain criteria, and Congress moreover retained the power to reject the vetoes. Clinton,

524 U.S. at 436. By contrast, here, the Secretary may

waive any laws absent any guidance, and Congress has

no authority to reject the waiver decision. This effectively grants the Executive exclusive lawmaking

power, which is constitutionally impermissible. See

also Chadha, 462 U.S. at 954. Indeed, Congress has bestowed on the Secretary even more power than Congress itself possesses. While Congress can only amend

or repeal a law through an arduous Article I process,

the Secretary operates under none of these “finely

wrought” constitutional constraints, but rather has the

power, free from all non-constitutional judicial review,

to repeal laws. Clinton, 524 U.S. 417. The Court should

therefore grant review to consider whether the § 102(c)

waiver authority violates the Presentment Clause and

thus must be invalidated.

III. IIRIRA’s Severe Truncation Of Judicial

Review Exacerbates The Separation-OfPowers Violations And Underscores The

Need For This Court’s Review.

Congress’s decision not only to cede its policymaking power to the Executive, but also to shield the exercise of that power from the Judiciary’s full scrutiny,

exacerbates the separation-of-powers violations, and

reinforces the necessity of this Court’s review.

First, the fact that IIRIRA insulates the Secretary’s waiver decisions from the Judiciary’s traditional

review of statutory claims—including arbitrary and

unexplained agency decisions—further undermines

any assertion of § 102(c)’s constitutionality. As this

Court explained, “judicial review perfects a delegatedlawmaking scheme by assuring that the exercise of

such power remains within statutory bounds,” and is

thereby 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). Here, however, the Secretary’s Waivers are immune to the Judiciary’s crucial

check to ensure that the Secretary’s actions are contained within statutory limits, thus granting DHS an

effective carte blanche to claim the § 102(c) waiver authority for any border wall project it desires, unconstrained by any geographic limits provided in § 102(b)

or any animating purpose reflected in § 102(a). Without even a semblance of judicial review (other than of

constitutional claims, as raised here), the separationof-powers problems plaguing IIRIRA are graver still

because an executive official possesses, in effect, the

unpoliced and thus limitless power to nullify dulyenacted statutes designed to protect the interests of

Petitioners and many others.14

To address these concerns, Respondents have previously

argued that Congress’s appropriations power acts as the “primary

check[ ] on any potential abuse of that [§ 102(c) waiver] freedom.”

McAleenan I Dkt. 27-16, n.15. However, even aside from the fact

that a subsequent appropriations cannot remedy a constitutional

infirmity in the underlying statute, cf. TVA v. Hill, 437 U.S. at

Second, IIRIRA also dispenses with ordinary circuit court appellate review, which is the typical avenue

through which weighty constitutional matters are

tested and fleshed out before they reach this Court.

While a number of district courts have rejected the

kinds of separation-of-powers arguments raised

here—by generally falling in lockstep with prior district court rulings, as did the court below—there has,

to date, been no opportunity for any appellate review

on the merits of the serious separation-of-powers issues afflicting IIRIRA. In the meantime, the Executive’s waivers have only increased in frequency and the

breadth of laws waived, as has the Secretary’s (unreviewable) interpretation of the vast geographical scope

as to where these waivers may apply. In view of these

developments, along with the fact that additional review confined to the district courts will not better illuminate the constitutional issues, this is an appropriate

juncture for this Court to afford the separation-ofpowers concerns raised by § 102(c) the scrutiny they

warrant.

As Chief Justice Marshall explained, while the

Constitution exists to impose limits on government,

those limits are rendered meaningless if not enforced

by the Judiciary, whose “province and duty” is “to say

190 (holding that an appropriations rider could not be construed

as impliedly modifying a substantive statute), any reliance on the

appropriations power as a “check” must now be seen as totally

hollow in view of President Trump’s 2019 emergency declaration

redirecting military and other funds to finance wall construction

after Congress rejected the President’s bid for increased appropriations. 84 Fed. Reg. 4,949-50 (Feb. 20, 2019).

what the law is.” Marbury v. Madison, 5 U.S. 137, 177

(1803). Here, this Court is not only the court of last

resort, it is the court of only resort for appellate review

to clarify “what the law is” for IIRIRA: the extraconstitutional delegation of core legislative power to the

Executive. Id. This affords yet another compelling reason for this Court to grant review.

------------------------------------------------------------------

CONCLUSION

For the foregoing reasons, this Court should grant

this petition for a writ of certiorari.

Respectfully submitted,

A. JEAN SU

Counsel of Record

ERIC R. GLITZENSTEIN

BRIAN P. SEGEE

CENTER FOR BIOLOGICAL DIVERSITY

1411 K Street NW, Suite 1300

Washington, DC 20005

(202) 849-8399

jsu@biologicaldiversity.org

JASON C. RYLANDER

DEFENDERS OF WILDLIFE

1130 17th Street NW

Washington, DC 20036

ANTHONY T. ELISEUSON

ANIMAL LEGAL DEFENSE FUND

140 South Wacker Drive, Suite 2400

Chicago, IL 60606

Date: January 31, 2020

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.