Reply Brief — Center for Biological Diversity, et al., Petitioners v. Chad Wolf, Acting Secretary of Homeland Security, et al.

No. 19-975

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

In The

Supreme Court of the United States

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

LEGAL DEFENSE FUND, DEFENDERS OF WILDLIFE,

AND SOUTHWEST ENVIRONMENTAL CENTER,

Petitioners,

v.

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

-----------------------------------------------------------------REPLY BRIEF IN SUPPORT OF

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

i

TABLE OF CONTENTS

Page

Introduction .........................................................

1

Argument .............................................................

2

I.

II.

III.

This Case Is An Ideal Vehicle To Clarify

The Outer Bounds Of The Non-Delegation

Doctrine .....................................................

2

The Presentment Issue Also Warrants The

Court’s Review ...........................................

9

This Case Warrants The Court’s

Intervention To Address This Important

And Recurring Issue .................................. 11

Conclusion............................................................ 13

ii

TABLE OF AUTHORITIES

Page

CASES

Clinton v. City of New York,

524 U.S. 417 (1998) ........................................... 11, 12

Financial Oversight and Management Board

for Puerto Rico v. Aurelius Investment, LLC,

590 U.S. ___ (2020) ....................................................4

Gundy v. United States,

139 S. Ct. 2116 (2019) ................................. 5, 8, 9, 11

Marshall Field & Co. v. Clark,

143 U.S. 649 (1892) .................................................10

Paul v. United States,

140 S. Ct. 342 (2019) .................................................8

Republic of Iraq v. Beaty,

556 U.S. 848 (2009) .................................................10

Rodriguez v. United States,

480 U.S. 522 (1987) ...................................................4

Salve Regina College v. Russell,

499 U.S. 225 (1991) .................................................12

Touby v. United States,

500 U.S. 160 (1991) ...................................................6

U.S. v. Balsys,

524 U.S. 666 (1998) ...................................................5

Whitman v. American Trucking Association,

531 U.S. 457 (2001) ...................................................6

iii

TABLE OF AUTHORITIES—Continued

Page

STATUTES

10 U.S.C. 433(b)...........................................................10

10 U.S.C. 2350(b)(c)(1) ................................................10

10 U.S.C. 2671(b).........................................................10

25 U.S.C. 3001 et seq. ..................................................10

25 U.S.C. 3406(b).........................................................10

25 U.S.C. 3406(d) ........................................................10

43 U.S.C. 1652(c) .........................................................10

46 U.S.C. 501(a)...........................................................10

ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996 (CODIFIED AT 8 U.S.C. § 1103 NOTE)

§ 102(a) ..........................................................................6

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

FEDERAL REGISTER

84 Fed. Reg. 4,949-50 (Feb. 20, 2019) .........................12

85 Fed. Reg. 14,953-55 (Mar. 16, 2020) ......................13

85 Fed. Reg. 14,958-60 (Mar. 16, 2020) ......................13

85 Fed. Reg. 14,960-61 (Mar. 16, 2020) ......................13

85 Fed. Reg. 14,963-65 (Mar. 16, 2020) ......................13

85 Fed. Reg. 14,965-66 (Mar. 16, 2020) ......................13

85 Fed. Reg. 21,015-17 (Apr. 15, 2020) .......................13

85 Fed. Reg. 28,658-60 (May 13, 2020) .................. 3, 13

iv

TABLE OF AUTHORITIES—Continued

Page

85 Fed. Reg. 28,660-62 (May 13, 2020) ......................13

85 Fed. Reg. 29,472-73 (May 15, 2020) ......................13

OTHER AUTHORITIES

David J. Barron and Todd D. Rakoff, In Defense

of Big Waiver, 113 COLUM. L. REV. 265 (2013) .........9

1

INTRODUCTION

The Brief in Opposition reinforces the need for this

Court to grant review and establish the outer bounds

of when a statute does violence to the separation of

powers. The Government does not dispute the astonishing power that Section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act

(IIRIRA) vests in an Executive official to waive any

laws regarding any subject matter, across all jurisdictions, and as applied to an immense geography. Nor

does the Government engage with Section 102(c)’s

consequential effects on constitutional structure: an

unelected Executive agent’s license to make profound

national policy decisions, and the people’s crippled capacity to hold someone accountable for them.

Nevertheless, the Government contends that the

Court should deny review. The Government’s central

argument is that Section 102(c) does not delegate legislative power to the Executive in violation of the

non-delegation doctrine because Congress already determined that wall construction overrides all other interests protected by federal, state, tribal, or local laws.

The Government is wrong. Section 102(c) squarely

places the decision-making power of weighing barrier

construction against all other statutorily-protected

interests in the “sole discretion” of the Secretary of

Homeland Security. That is pure legislative policymaking of the sort that members of this Court have

recently opined flouts the separation of powers.

2

At base, the Government cannot conceal the reality that Section 102(c) is an essentially unbounded

creature of legislative power cloaked in Executive

agency skin. Because of that, this case presents an

ideal opportunity for the Court to clarify and reassess

when a statute crosses the constitutional line of the

proper separation of powers. The necessity for that

evaluation is patently clear if the non-delegation doctrine and Presentment Clause are to meaningfully intercept the increasing accretion of power in one

branch. If Section 102(c) does not raise grave separation-of-powers concerns, then no statute does. The

Court should grant certiorari.

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

ARGUMENT

I.

This Case Is An Ideal Vehicle To Clarify

The Outer Bounds Of The Non-Delegation

Doctrine.

If the capacious Section 102(c) waiver authority

does not violate the non-delegation doctrine as it has

evolved in modern jurisprudence, then nothing does—

and the doctrine is meaningless. Contrary to the Government’s contentions, therefore, this case is an excellent vehicle for the Court to reevaluate and establish

the outer bounds of an impermissible delegation of

legislative authority to the Executive.

1. Section 102(c) is Congressional policy-making

power delegated to the Executive. The Government does

not dispute that the Secretary can dispense with any

law he desires, including laws protecting civil rights,

3

property rights, criminal laws, anti-discrimination provisions, environmental laws, and most recently, competitive bidding requirements and wage and labor

protections.1 See Equal Voice Network Amicus Brief;

North American Butterfly Association Amicus Brief.

Nor does the Government refute that the Secretary can

not only void federal law, but also preempt state, tribal

and local laws, which raises serious federalism concerns in an unelected official’s exercise of Supremacy

Clause power. Opp. 22; see Local Governments Amicus

Brief. Nor does the Government deny that the Secretary may unleash the waiver authority to build on a

colossal geography, whereby his own department defines “vicinity of the border” as being anywhere within

100 miles of all coasts and borders where two-thirds of

Americans live. Pet. 33-34. And though the Government asserts that Section 102(c) is “markedly narrower” than other delegations (Opp. 21), it offers not

one word in defense of why.

Despite its failure to rebut Section 102(c)’s staggering scope, the Government argues that none of this

presents a delegation problem because the waiver authority is not legislative policy-making. Id. at 22. That

is incorrect.

According to the Government, the Secretary “is

not making independent policy decisions” because

1

Since the petition’s filing, the Secretary issued an unprecedented waiver of ten federal procurement laws, eliminating requirements for open competition, the right for losing bidders to

protest, adherence to Department of Labor wage and labor rates,

and transparency on cost data, 85 Fed. Reg. 28,658-60 (May 13,

2020).

4

Congress “already balanced those interests” and “made

the determination” that “expeditious construction . . .

outweighs the policy interests advanced by other laws.”

Id. at 23. But that reading defies the statute’s plain

language and implementation. Section 102(c) provides

that “the Secretary of Homeland Security shall have

. . . authority to waive all legal requirements [in his]

sole discretion [he] deems necessary” for expeditious

barrier construction. Picking and choosing, per his

“sole discretion,” which of hundreds of federal, state,

local, and tribal laws to comply with—and which to

dispense with—for the purposes of wall construction

is quintessentially an exercise of legislative policymaking.

To be sure, Congress itself could have jettisoned

every legal requirement that might otherwise apply

to construction. But Congress declined to do so,

thereby avoiding responsibility for such a politically

fraught result. Instead, it punted the politically difficult decision of weighing border construction against

all other protected interests to a politically unaccountable Executive agent. It is that action—“decid[ing]

what competing values will or will not be sacrificed to

the achievement” of barrier construction—that is “the

very essence of legislative choice.” Rodriguez v. United

States, 480 U.S. 522, 526 (1987). The Constitution prohibits collapsing these “structural constraints” which

were intentionally architected “to ensure political accountability.” Financial Oversight and Management

Board for Puerto Rico v. Aurelius Investment, LLC, 590

U.S. ___, ___ (2020) (slip op., at 7).

5

2. The Court should grant review to reinvigorate

the non-delegation doctrine. The Government spills

substantial ink on the near century-long history of

case law mostly upholding statutes under non-delegation challenges. Opp. 16-19. But the fact that the nondelegation doctrine has become little more than a rubber stamp—as exemplified by the district court ruling

below and others like it—is a reason to grant the petition, not deny it. As the Government acknowledges,

members of the Court have invited a fresh appraisal of

the doctrine and its role in preserving the Constitution’s structural integrity. Opp. 22. And as in other contexts, the Court has “revived” doctrines after many

decades when the proper case warrants it. See, e.g.,

U.S. v. Balsys, 524 U.S. 666 (1998) (resurrecting the

“same-sovereign” rule concerning the scope of the

Fifth Amendment’s Privilege Against Self-Incrimination after decades of dormancy).

Accordingly, Petitioners seek review of Section

102(c) as an opportunity for the Court to expand the

prior jurisprudence by both fleshing out meaningful

criteria and setting an outer boundary as to the type of

delegation that violates the non-delegation doctrine. A

statute that confers unchecked and unreviewable authority to nullify every statute in the U.S. Code is an

opportune vehicle for doing so.2

2

Section 102(c)’s authority to waive every law is far more

vast and unrestrained than prior constitutional delegations cited

by the Government (Opp. 18 n. 3); holding it unconstitutional,

therefore, would not render “most of the Government . . . unconstitutional.” Gundy v. United States, 139 S. Ct. 2116, 2130 (2019).

6

3. If Section 102(c) does not fail the intelligible

principle test, that test is devoid of substance. The

Government contends that the delegation at issue

passes the prevailing intelligible principle test because

Sections 102(a) and (c) provide the general policy and

parameters to satisfy the test’s elements. Opp. 19-20.

That is wrong. First, the mere objective of building

barriers does not circumscribe the Secretary’s waiver

discretion.

Second, nor do the terms “necessary” and “expeditious” act as boundaries for waiving laws because

they are defined exclusively by whatever the Secretary

desires them to mean in his “sole discretion.” See Pet.

30. Worse, the exercise of that discretion is not even

bounded by any experience with, let alone expertise in,

the myriad laws waived, as the Government concedes.

Opp. 22. The Government contends that the Secretary,

on the one hand, “is not called upon to render definitive

interpretations of or judgments about those other requirements that might be best suited to agencies or

Specifically, Section 102(c) is not cabined to one statute but involves all federal, state, tribal, and local laws; lacks meaningful

Congressional guidance to inform decision-making; and is immunized from ordinary judicial scrutiny for arbitrary exercises of

the delegated authority. Cf. Whitman v. American Trucking Association, 531 U.S. 457 (2001) (delegated authority to set air pollutant standards implicating only the Clean Air Act, based on

technical criteria, rulemaking processes, and subject to judicial

review); Touby v. United States, 500 U.S. 160 (1991) (delegated

authority to designate controlled substances within the Controlled Substances Act, informed by numerous criteria, intraagency consultation, public comment, and subject to judicial review).

7

entities that administer those other laws,” yet on the

other hand, is required to “determine whether waiving

any other legal requirements is ‘necessary’ to achieve

an objective” of barrier construction. Id.

This makes no sense. If the Secretary admittedly

has no expertise in the operation of the numerous laws

he is called to (and routinely does) waive and need not

even consult the agencies with such expertise, on what

“intelligible” basis is the Secretary making judgments

that waiving any of these laws is actually “necessary”?

The Government has no coherent answer, and there is

none. The reality, as amplified by the Government itself, is that the Secretary has been given leeway to

discard duly enacted laws at whim, with his “sole discretion” being the only guidepost. That is the furthest

conceivable thing from an “intelligible principle” if that

test has any teeth at all.

Finally, the Government argues that no further

Congressional guidance is warranted in light of the

Executive’s responsibility over border protection and

immigration. Id. at 20. But while the Secretary may

possess expertise and have shared authority in those

areas, the policy-making power enshrined in Section

102(c) implicates the far wider universe of all public

and private interests protected by the laws the Secretary is empowered to waive. See Pet. 32. The delegation

thus demands far more guidance than Congress furnished. Yet the intelligible principles to circumscribe

the Secretary’s waiver power are absent here.

8

4. Section 102(c) delegates major policy-making

powers that are prohibited under alternative approaches enforcing the non-delegation doctrine. Section

102(c)’s quintessential policy-making character and its

major social policy impacts render this case a particularly strong vehicle to consider the two alternative approaches to enforcing the non-delegation doctrine

recently posited by Justices Gorsuch and Kavanaugh.

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

joined by Roberts, C.J. and Thomas, J.); Paul v. United

States, 140 S. Ct. 342 (2019) (Kavanaugh, J., concurring).

The Court need not definitively address the merits

of those approaches at this juncture. Even so, the Government’s bid that Section 102(c) passes muster under

them should be rejected. Opp. 23. With respect to Justice Gorsuch’s proposed approach, Section 102(c) is

the paradigm of an Executive official making policy

judgments reserved for Congress, as discussed above

and in the petition. Pet. 21-25.

Regarding Justice Kavanaugh’s proposed approach,

the Government asserts that Section 102(c) does not

implicate major national policy decisions constitutionally reserved for Congress and the President in the legislative process. Opp. 24. Just the opposite. Choosing to

strip border communities of the same legal rights enjoyed by other Americans is of tremendous national

consequence. It cannot be, for example, that the Secretary’s decision to preempt state laws and undermine

federalism is not a major national policy decision of

constitutional import. See Local Governments Amicus

9

Brief. Likewise, the Secretary’s decisions to deprive

border residents of the benefits of public health laws

and to void statutes designed to safeguard Native

Americans’ interests—enacted in part “to guard unpopular minorities from the tyranny of the majority”—

are surely major national policy decisions of political

and socio-economic consequence. Gundy, 139 S. Ct. at

2134 (Gorsuch, J., dissenting); see Equal Voice Network

Amicus Brief. Section 102(c) is thus an apt candidate

to explore both approaches for breathing life back into

the non-delegation doctrine.

II.

The Presentment Issue Also Warrants The

Court’s Review.

In arguing that this case does not raise a Presentment Clause issue warranting this Court’s consideration, the Government contends that Section 102(c)

does not “empower the Secretary to repeal any law.”

Opp. 25. That is dually mistaken.

1. The Government likens Section 102(c) to plain

vanilla waiver provisions that merely “waive certain

applications of a statute” and do not alter the underlying law. Id. But that massively distorts the scope of

Section 102(c), which entails the most sweeping waiver

authority ever enacted by Congress.3 The Government

itself proves as much. None of the statutes in the Government’s laundry list of purported analogies resemble

the girth of Section 102(c): the extraordinary power to

3

See David J. Barron and Todd D. Rakoff, In Defense of Big

Waiver, 113 COLUM. L. REV. 265, 290 (2013).

10

waive all laws, without input from agencies responsible for administering such laws and severed from ordinary judicial review.4 This is a difference not only of

degree but of kind. With authority this capacious and

unaccountable, the Secretary’s power to waive is, effectively, the power to repeal.

Thus, because of the behemoth nature of Section

102(c), the IIRIRA waivers function as amendments to

the underlying laws being waived. To give an actual

example, the Secretary has issued waivers nullifying

the enforcement of the Native American Graves Protection and Repatriation Act, 25 U.S.C. 3001 et seq.

(“Graves Protection Act”), with respect to more than

500 miles of borderlands. Significant swaths of this

land contain sacred Native American burial grounds

that are now subject to exhumation and permanent

desecration. See Archaeology Southwest Amicus Brief.

The Secretary’s waivers have effectively amended

the statute with the provision: “Nothing in this law in

its entirety shall apply to one-fourth of the southern

border.” This significant amendment affronts the separation of powers. By bypassing the “difficult and deliberative” processes of the Presentment Clause, the

4

The Government’s list highlights prototypically narrow

waiver authorities: e.g., the waiver applies to one law or an enumerated set of laws (e.g., 10 U.S.C. 433(b); 10 U.S.C. 2350(b)(c)(1);

10 U.S.C. 2671(b); 43 U.S.C. 1652(c); and the provision in

Marshall Field & Co. v. Clark, 143 U.S. 649 (1892)); gives limited

waiver authority to an agency that administers a particular law

(e.g., 25 U.S.C. 3406(b) and (d); 46 U.S.C. 501(a)); or is constricted

to the President’s particular authority over foreign relations (e.g.,

the provision in Republic of Iraq v. Beaty, 556 U.S. 848 (2009)).

11

Executive has been permitted to trample the very

“minority interests” that the Graves Protection Act

was birthed to protect. Gundy, 139 S. Ct. at 2134-35

(Gorsuch, J., dissenting).

2. The Government’s attempt to distinguish

Clinton v. City of New York, 524 U.S. 417 (1998), also

fails. Contrary to the Government’s reading (Opp. 27),

Section 102(c) implicates the same concern the Court

had in Clinton: in exercising immense authority to

dispense with duly enacted statutes, the Secretary is

substituting his own policy judgment for that of Congress just as the President was able to do in cancelling

line items. Clinton, 524 U.S. at 444. In addition, the

Court in Clinton rejected the government’s defense

that Congress intended the cancellation of items,

which is essentially the same argument the Government advances here with respect to waiver decisions.

Opp. 27. The fact that Congress anticipates the Executive to act on the waiver authority is of no moment

and in no way “alter[s] the procedures” of the Presentment Clause. Clinton, 524 U.S. at 445-46.

III. This Case Warrants The Court’s Intervention To Address This Important And Recurring Issue.

The Government argues that the Court need not

intervene because Congress provides a sufficient check

on Executive power. Opp. 28. This misses the mark.

The petition seeks review of whether Congress unlawfully ceded its power to the Executive, not whether

12

the Executive has acted “within the limitations” of that

unlawfully delegated legislative power. Id. Court intervention is vital to strike down Congress’s relinquishment of power, for “[a]bdication of responsibility is not

part of the constitutional design.” Clinton, 524 U.S. at

452 (Kennedy, J., concurring). In any case, the Government’s reliance on the Congressional purse as a “check”

on Executive Action is hollow in view of the administration’s 2019 emergency declaration redirecting

military funding to finance wall construction after

Congress rejected the President’s bid for increased

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

Further, the Court’s consideration of these

weighty constitutional questions is warranted because

Congress has denied Petitioners effective review in the

lower courts. By eliminating Circuit court review—the

traditional means of “promot[ing] decisional accuracy,”

Salve Regina College v. Russell, 499 U.S. 225, 232

(1991), and crystallizing constitutional issues for this

Court’s deliberation—Congress has left this Court as

the only appellate tribunal empowered to cast judgment on whether Section 102(c) impermissibly blurs

the separation of powers. This affords another crucial

reason for review.

Finally, the issue before the Court is not only important; it is recurring. Since the petition’s filing, the

Secretary has issued nine additional waivers abrogating 65 federal statutes as applied to over 235

miles of construction—amounting to nearly one-fourth

of the entire southern border and vicinity covered by

13

this administration’s waivers.5 The Secretary’s everexpanding exercise of Section 102(c) will continue to

have profound practical and legal implications, especially in light of the immense geographical area to

which Section 102(c) may be applied. There is thus a

compelling public interest in having this Court address

the constitutionality of Section 102(c).6

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

CONCLUSION

The Court should grant the petition.

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

5

85 Fed. Reg. 14,953-55 (Mar. 16, 2020); 85 Fed. Reg. 14,95860 (Mar. 16, 2020); 85 Fed. Reg. 14,960-61 (Mar. 16, 2020); 85 Fed.

Reg. 14,963-65 (Mar. 16, 2020); 85 Fed. Reg. 14,965-66 (Mar. 16,

2020); 85 Fed. Reg. 21,015-17 (Apr. 15, 2020); 85 Fed. Reg. 28,65860 (May 13, 2020); 85 Fed. Reg. 28,660-62 (May 13, 2020); 85 Fed.

Reg. 29,472-73 (May 15, 2020).

6

That the Court has previously denied petitions in other cases

challenging Section 102(c) (Opp. 30) is no obstacle to the Court

granting review here, especially in view of the expanding exercise

of the waiver authority and recent concerns expressed by the

Court’s members regarding the non-delegation doctrine’s validity.

14

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

Date: June 4, 2020