Petition for Writ of Certiorari — Defenders of Wildlife v. Chertoff (No. 07-1180)

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071180MAR 17 2008

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In the Supreme Court of the Gnited States

a aS

DEFENDERS OF WILDLIFE AND SIERRA CLUB,

Petitioners,

MICHAEL CHERTOFF,

SECRETARY OF HOMELAND SECURITY

Respondent.

On Petition for a Writ of Certiorari to

the United States District Court for

the District of Columbia

PETITION FOR A WRIT OF CERTIORARI

ANDREW J. PINCUS DAN KAHAN

CHARLES A. ROTHFELD Counsel of Record

Mayer Brown LLP TERRI-LEI O’MALLEY

1909 K Street, NW Yale Law School

Washington, DC 20006 Supreme Court Clinic

(202) 263-3000 127 Wall Street

New Haven, CT 06511

ROBERT DREHER (203) 432-4800

BRIAN SEGEE

Defenders of Wildlife Counsel for Petitioners

1130 17th Street NW

Washington, DC 20036

(202) 772-3225

Counsel for Defenders of

Wildlife

IRANI AD ERS A BLS PIR BASTIEN Sw HIE HOES

WIL80n-EPES PRINTING Co., INC. — (202) 788-0086 - WasHiNGTON, D. C. 20002

QUESTIONS PRESENTED

Section 102(c) of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (“IIRI-

RA”), 8 U.S.C. § 1103 note, provides that “the Secre-

tary of Homeland Security shall have the authority

to waive all legal requirements such Secretary, in

such Secretary’s sole discretion, determines neces-

sary to ensure expeditious construction of the” physi-

cal barriers and associated roads along the United

States’ border that are authorized by that provision.

The statute expressly precludes actions seeking judi-

cial review of a waiver for failure to comply with the

statutory standard and permits only suits alleging

constitutional violations. This action presents a con-

stitutional challenge to the Secretary’s decision waiv-

ing nineteen federal laws, and all state and local le-

gal requirements related to them, in connection with

the construction of a barrier along a portion of the

border with Mexico.

The questions presented are:

1. Whether the preclusion of judicial review

renders Section 102(c)’s grant of expansive waiver

authority to the Secretary of Homeland Security an

unconstitutional delegation of legislative power.

2. Whether Section 102(c)’s grant of waiver au-

thority violates Article I’s requirement that a

duly-enacted law may be repealed only by legislation

approved by both Houses of Congress and presented

to the President.

! a in eck ail 9 Nic al ag ets ny I Ee RR AO i Bee ee Sted d “ee SO Cte ly eee oe ‘Fe %

RULE 29.6 STATEMENT

:. Defenders of Wildlife and Sierra Club state that

neither organization has a parent corporation and no

publicly-held corporation owns 10% or more of the

stock of either organization.

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ......................ccecsssssersseeeee i

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TPE I FARE BIE Fi vias cvcnnkncecesnoncsccsssnesoncsens Vv

CTE ai iliidiesicid sssnshintannnrnncvisaaciinnctaniescdiids 1

a AEE Dia i ARIE USP RS MO Sir ADD ge 1

STATUTORY PROVISION INVOLVED................... 1

Be A ET ckee lia icatbiabiamieuntaiprnsinbic aisha baceaibhnbeaisheibanas 2

A. Statutory Backwroun «..........000sccccsiesccsccsnsseoes 4

B. Administrative Actions And Proceed-

SOI Tai iia tril a aa ok 5

REASONS FOR GRANTING THE PETITION ........ 9

A. The Secretary’s Expansive Authority To

Waive Any Federal, State, Or Local Le-

gal Requirement Violates The Constitu-

tion’s Separation of Powers..................cceeeeee 11

1. Conferring Broad Administrative

Authority Without Judicial Review

To Check Compliance With The

Statutory Standard Constitutes An

Unconstitutional Delegation Of

LQUMMURIOR: POWOE oaiviicccisicccesececivsecssnssscses. 12

a. The “Intelligible Principle”

Standard Requires Judicial

Review To Ensure Agency

Compliance With Congres-

sional Delegations Of Author-

SA ae MADEN D A aR Ee PM Cy MeN 13

gt Ee OE ee CS et ae Nee

TABLE OF CONTENTS—continued

Page

b. Delegations Without Judicial

Review Have Been Upheld

Only In The Limited Circum-

stances In Which The “Intelli-

gible Principle” Requirement

EONS TE PN ei iosiicnsiexsessecs 17

2. Section 102’s Stand-Alone, Omni-

bus Waiver Authority Violates Art.

I, § 7 Of The Constitution...................... 19

B. The Questions Presented Are Both Le-

gally Significant And Practically Impor-

1. Section 102(c)’s Virtually Unprece-

dented Restriction of Appellate Re-

view Necessitates This Court’s In-

Rae EAIN EG AAR) OEP RECONDIES SON PNR 25

2. Review Is Necessary To Resolve

Conclusively The Constitutionality

Of The Section 102 Waiver Author-

SEP pctuiniasnasinaien 5 FEE SSI AL SR ey 26

3. Review Is Particularly Appropriate

Here Because There Are Strong

Indications That The Secretary’s

Waiver Exceeded His Statutory

pT EI IIR eE PARK OE OL ee 28

EO a IIIT pitti tiakisacnsnedsas stony exch nloacassedpiobeaounles 29

TABLE OF AUTHORITIES

Page(s)

CASES

A.L.A. Schechter Poultry Corp. v.

United States, 295 U.S. 495 (1935) ............... 14-15

American Power & Light Co. v. SEC,

Re re eI iuiiedasik da careccdbidnsnscocksscnsesccen 13-14

Amalgamated Meat Cutters v. Connally,

Dad Wy ete Te I ED., TO TT) «ov. ccccccsccccccsccescses 15

Calderon v. Moore, 518 U.S. 149 (1996) .................. 11

Citizens To Preserve Overton Park, Inc. v.

Oe NE Fh I AT Bois snicedacciecs cece cccneneses 18

Clinton v. City of New York,

Fe Rr OR iaiiaicicdcnddvckontstscaecasciceaiscs passim

Department of the Interior v. South Dakota,

Ue re a aiiaic va cncessnadcidicntsantvccsscreces 15, 16

Fox v. Acadia State Bank, 937 F.2d 1566

Ce i I ieee ical Lid scpavnts accnnasanacsinn 27

Gould v. Bowyer, 11 F.3d 82 (7th Cir. 1998)............ 27

Heckler v. Chaney, 470 U.S. 821 (1985) ........... 19

INS v. Chadha, 462 U.S. 919 (1983) ...................006. 20

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

SU te ID add dinhcck ky co sescsiceidnnbadh concedacndae 12

Marshall Field & Co. v. Clark,

BM rele WI ahh soi ca scdc seca ccocccdacceccksdaactan 21

Mills v. Green, 159 U.S. 651 (1895) 0.0... eeeeeeees 11

Mistretta v. United States,

ME I Ne I oii i id ca dann anconaaannaracconaecannnnen 13

Panama Refining Co. v. Ryan,

ee EE dic sttiiociiccncaveasnnsaacnetbadedeeneiie 15

TABLE OF AUTHORITIES—continued

Page(s)

Reno v. Catholic Social Services, 509 U.S. 43

SEE SSA Stats a FSS SA ae 18

Sierra Club v. Ashcroft, No. 04-0272,

2005 U.S. Dist. LEXIS 44244

a |... scncecsnducccscnves 27

Skinner v. Mid-Am. Pipeline Co.,

I iia iacinccocsccncesconsconeconsssacen 13

South Dakota v. Dep't of Interior,

GO F.2G S76 (Ste Cir. 1906)...........2..0..0..0..22.0002005. 15

Touby v. United States,

| __) RER aO 14, 16

United States v. Bozarov, 974 F.2d 1037

a cad nenseeecnnte 16

United States v. Garfinkel, 29 F.3d 451

AIRES eS 15-16

United States v. Gordon, 580 F.2d 827

TN SERRE a i tee: ge te 15

United States v. Pastor, 557 F.2d 930

I spimmsenenenes 15

United States v. Widdowson, 916 F.2d 587

a csesbtipobe 16

Watters v. Wachovia Bank,

ee TD ica cccsnbscakediacssncsancadsice 16-17

Webster v. Doe, 486 U.S. 592 (1988) .................. ee 18

Whitman v. American Trucking Ass'n,

ere NF PE oicksdck te dscsvannodiicsccncncesciesces 12, 17

Yakus v. United States, 321 U.S.

a a si bubabecduns 3,13

vii

TABLE OF AUTHORITIES—continued

Page(s)

STATUTES

Consolidated Appropriations Act, 2008,

Pw b. 120-161, 121 Stat. 16464 ......................... 27

Homeland Security Act of 2002,

Pub. L. 107-286, 116 Stat. 2135 ........................... 4

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L.

No. 104-208, Stat. 3009, 3009-554 (codified

as amended at 8 U.S.C. § 1103 note) ......... 1, 4, 26

IE I ia fatih sich inthactsinstniaciteiecessssicadon passim

IIE 5 i.u 5... ninucdiindscandansakcsipiacahianse’ 4

|. __RERE ITI N te aapete omeye ees passim

REAL ID Act of 2005, Pub. L. No. 109-13,

MII id hilo inscstcs saecnahiuaidins ebbeckabtanibaaagibin 5

BE kk iciciies sacicesssscseinsssicarissteciisabomadinauaion 19-20

Be I nica dscsnneanneeahncnispahianinhansanmbpiiaeaknioniinl 25

Be Ee IE ch bicsecksakssskesdntnitndinncsassadscssensabaenbiaiion 25

ee OD a ccsnicddniensirasinncssensnssacseeccasioubee 25

ss cscniansoveacinindsnasanail 6,17

BR ID os irictinasnitsansenensionaniacnstutocielneciiaiinen 17

sai iccssccsecsgtecstdconeaetinds 17, 18

cick coecadeianmsae 7

2 EES ENCE NO aN O DR CO OpPeITEO eT 23

ee eR IIE a isesiivicstchanscechesccnandsinendeecahsmbabiegliinei 22

ic cahocakinsedmenapniinksanabeneunniabalibans 23

id sonscensataneniads abincdindabihospuboaiecaion 7

Be IIE 1, coisenhara sued cepebicniinamakanneaamnaumaiaia 6

I ie ee 7

vill

TABLE OF AUTHORITIES—continued

Page(s)

RE IE i iisisis ck kastcssnsndicdendsdasstaeiarcciedaniaieuaae 7

Be iii esisdcsthcnsdcdcdsansenduaaicensandancnenaminds 7

I os ios ait ndabe dia ea abaiabeRiaael 7

NN ia ia os cslanib tip ch-anincidenpnnonsaadaaiodaaigenebiio 7

NE i a ins nbcosaiiboapaucnaacaiceenmaennensiaen 7

I I ai 1 cancnsacisnndinnsonasinabneevancandanednniven tens 7

cs shcersishiisincorchiasomaans 4,7

Be I ca siisccccpasnnsindsdandsaikandinands snaadbuguacell 23

Be I os ces.cineisanas ddsoizasirnnsisdsupencedoueuiislonanien 22

Re FTG) si ssiceissiecnssnnvasaees ccnsadainassadinmmaie 23

EE POP sy sca inlencswsanavasindasacsduakncsanttenssvamsenccacnt 22

SEE I snc ccadicasptoeceshuncsssun'seusssanpekappensaiaiganans 7

raids ciesticciannavnanducchspuievussnsl Bpaaehebabieinn 7

A ne oasis seizcnincadicems dnusdccascubsthuornuuousinnies 4

WO NY oii i cee 6

A ee I ii digncssissnsnansonareasnseaeuvacubeaondasacmnniaanl 7

I Te Ee ND ins do cia co nacesksdhidemiseadndy civejeiomraunaane 22

Be, NICE oi scincasccsccsncsessasesascocniecaadsiovecones 22

I EE aii iiied ddinvniccesinehouiiccaictnocauiaaases da buuenanitie 7

ee iain nn sks cndds th cderiinaabecta tcaapanuads 7

ite CO ni ee 7

PRIS Lt | SEBEL REPS M OEM E! At ASSO OE 23, 25

RE BI inetd csctor shinee ccsctedrnnatedbietomadaae ’

PR es IUD asiticesnsks sarnsnidpininssdsedendietaansabihentealed 22

MISCELLANEOUS

TT don se hatis di dasisendeenenseneccsorsesssisnonsiiens 6

72 Fed. Reg. 2535 (Jan. 19, 2007).............cccccccceeeeees 27

72 Fed. Reg. 60,870 (Oct. 26, 2007) ............0. 7, 16, 28

California Coastal Comm'n, W13a Staff Report

and Recommendation on Consistency De-

termination 14 (CD-063-03) (Oct. 2003) .............. 4

Letter from Michael Chertoff, Secretary of

Homeland Security, to Sen. Joseph Lie-

berman, Chairman of the Sen. Comm. On

Homeland Security and Governmental Af-

SI RI IIIT on cance hensuiceuctscssebscicccocsesacee 29

The Federalist No. 47 (James Madison)

rs sesupenuconse 24

Kevin Johnson, Jn Southwest Fixing the Fence

Never Ends, USA Today (Sept. 16, 2007)........... 27

Viktoria Lovei, Comment, Revealing the Defi-

nition of APA § 701(A)(2) by Reconciling

“No Law to Apply” with the Nondelegation

Doctrine, 73 U. Chi. L. Rev. 1047 (2006)............ 18

Memorandum from Stephen R. Via & Todd

Tatelman, Legislative Attorneys, Am. Law

Division, Cong. Research Serv. on Section

102 of H.R. 418, Waiver of Laws Necessary

for Improvement of Barriers at Borders

a al, | ilo clialnidnesatotncossone 22

Blas Nunez-Neto & Michael John Garcia, Bor-

der Security: Barriers Along the U.S. Inter-

national Border (Cong. Research Serv. Jan.

EERE ESS a i ar eno 4

Blas Nunez-Neto & Stephen Vina, Border Se-

curity: Fences Along the U.S. International

TABLE OF AUTHORITIES—continued

Page(s)

Border (Cong. Research Serv. Jan. 11,

Sibi iiiaccntatirnicetnlsneiielaciabiininasnicisteilais heeled si naatinaanae 26-27

Blas Nufiez-Neto & Stephen Vina, Border Se-

curity: Barriers Along the U.S. Interna-

tional Border (Cong. Research Serv. Dec.

SRR SATIS RAE Le ad at 22

UNITED STATES BUREAU OF LAND MANAGE.

MENT, SAN PEDRO RIPARIAN NATIONAL CON.

SERVATION AREA, DESCRIPTION

http://www.blm.gov/az/st/en/prog/blm_speci

al_areas/ncarea/sprnca.html ....................cceseeeeeees 5

Si ee Se SE ealiiientbinnghintailinntusrintindsihiiiaiantpianniiel 20

OPINION BELOW

The opinion of the district court (App., infra, la-

20a) is reported at 527 F. Supp. 2d 119.

JURISDICTION

The judgment of the district court was entered on

December 18, 2007. This Court’s jurisdiction rests on

Section 102(c)(2)(C) of the Illegal Immigration Re-

form and Immigrant Responsibility Act of 1996, 8

U.S.C. § 1103 note.

STATUTORY PROVISION INVOLVED

Section 102 of the Illegal Immigration Reform

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

1103 note, provides in relevant part:

(a) The Secretary of Homeland Security shall

take such actions as may be necessary to in-

stall additional physical barriers and roads

(including the removal of obstacles to detec-

tion of illegal entrants) in the vicinity of the

United States border to deter illegal cross-

ings in areas of high illegal entry into the

United States.

a. 22 2

(c)(1) Notwithstanding any other provision of

law, the Secretary of Homeland Security

shall have the authority to waive all legal re-

quirements such Secretary, in such Secre-

tary’s sole discretion, determines necessary

to ensure expeditious construction of the bar-

riers and roads under this section. Any such

decision by the Secretary shall be effective

upon being published in the Federal Regis-

ter.

* * & *

(2)(A) The district courts of the United States

shall have exclusive jurisdiction to hear all

causes or claims arising from any action un-

dertaken, or any decision made, by the Secre-

tary of Homeland Security pursuant to para-

graph (1). A cause of action or claim may only

be brought alleging a violation of the Consti-

tution of the United States. The court shall

not have jurisdiction to hear any claim not

specified in this subparagraph.

x*keke*

cree, or order of the district court may be re-

viewed only upon petition for a writ of certio-

rari to the Supreme Court of the United

States.

STATEMENT

Section 102 of ITRIRA delegates extraordinarily

broad authority to the Secretary of Homeland Secu-

rity. He may waive any statute or legal require-

ment—federal, state, or local—that otherwise would

apply to the actions of the government, or of anyone

else, in constructing the border fence if in the Secre-

tary’s “sole discretion” he finds such a waiver “neces-

sary to ensure expeditious construction.” And there

is no judicial review to determine whether the Secre-

tary’s waiver decision accords with the statutory

standard.

This constitutional challenge to this statute dele-

gating unprecedented power presents important

questions regarding fundamental separation of pow-

ers principles. “Liberty is always as stake when one

or more of the branches seek to transgress the sepa-

ration of powers * * *. By increasing * * * power * * *

beyond what the Framers envisioned, [a] statute

compromise[s] the political hberty of our citizens, li-

berty which the separation of powers seeks to se-

cure.” Clinton v. City of New York, 524 U.S. 417, 450,

452 (Kennedy, J., concurring).

Section 102 violates the separation of powers in

two ways. First, a delegation of authority can satisfy

the “intelligible principle” standard only if the Ex-

ecutive’s actions are subject to judicial review to en-

sure that they comport with the standard established

by Congress. Indeed, the entire purpose of the re-

quirement of a statutory principle is to be able “in a

proper proceeding to ascertain whether the will of

Congress has been obeyed.” Yakus v. United States,

321 U.S. 414, 426 (1944). The absence of judicial re-

view here is therefore fatal to Section 102 under the

nondelegation doctrine.

Second, as in Clinton, the delegation of authority

here bypasses the Constitution’s process for amend-

ing or repealing a law and instead endows the Secre-

tary of Homeland Security with authority to void any

federal law, free of any review of his determinations.

That effectively gives the Secretary legislative power

equivalent to that exercised by Congress and there-

fore is invalid under Clinton.

This Court’s intervention is necessary because of

another unique aspect of this statute: Congress elim-

inated all appeals as of right in constitutional chal-

lenges to Section 102. Congress’s decision to bypass

the courts of appeals means this Court is the only fo-

rum that can reconcile the contradictory legal princi-

ples applied by the district court here and by the

courts of appeals in other cases holding that the

availability of judicial review is essential to satisfy

the “intelligible principle” standard. Review by this

Court is therefore plainly warranted.

A. Statutory Background

Congress in 1996 directed the Attorney General

to “install additional physical barriers and roads * *

* in the vicinity of the United States border to deter

illegal crossings in areas of high illegal entry into the

United States.” Illegal Immigration Reform and Im-

migrant Responsibility Act of 1996 (“IIRIRA”), Pub.

L. No. 104-208, div. C, tit. I, § 102, 110 Stat. 3009,

3009-554 (codified as amended at 8 U.S.C. § 1103

note). The first such barrier was to be constructed

“along the 14 miles of the international land border

of the United States, starting at the Pacific Ocean

and extending eastward” in the vicinity of San Diego.

Id. § 102(b)(1).

The statute authorized the Attorney General to

waive the provisions of the Endangered Species Act

of 1973 (“ESA”), 16 U.S.C. § 1531 et seqg., and the Na-

tional Environmental Policy Act of 1969 (“NEPA”),

42 U.S.C. § 4321 et seq., to the extent “necessary to

ensure expeditious construction of the barriers and

roads” at the border. 8 U.S.C. § 1103 note. The At-

torney General never exercised this authority during

construction of the San Diego border fence; indeed,

the Bureau of Customs and Border Protection

(“CBP”) undertook to comply with NEPA and ESA.!

Congress in 2005 amended Section 102 of ITRIRA

to grant to the Secretary of Homeland Security? au-

1 Cal. Coastal Comm’n, W13a Staff Report and Recommenda-

tion on Consistency Determination 14 (CD-063-03) (Oct. 2003);

Blas Nunez-Neto & Michael John Garcia, Border Security: Bar-

riers Along the U.S. International Border 6 (Cong. Research

Serv. Jan. 8, 2008).

2 A series of amendments, including the Homeland Security Act

of 2002, Pub. L. No. 107-296, 116 Stat. 2135, transferred many

thority to waive “all legal requirements such Secre-

tary, in such Secretary’s sole discretion, determines

necessary to ensure expeditious construction of the

barriers and roads.” REAL ID Act of 2005, Pub. L.

No. 109-13, div. B, tit. I, § 102, 119 Stat. 231, 306

(emphasis added). The provision also precluded all

judicial review of any claim that a waiver under Sec-

tion 102 exceeded the scope of the Secretary’s dele-

gated authority. It permitted the district courts to

hear constitutional challenges, but eliminated ap-

peals as of right to the courts of appeals, providing

only for certiorari review by this Court of the district

court’s resolution of constitutional challenges. Id. §

102(c)(2).

B. Administrative Actions And Proceedings

Below

The Army Corps of Engineers began construction

in September 2007 of a border fence in the San Pedro

Riparian National Conservation Area (“SPRNCA”),

acting under instructions from the Department of

Homeland Security. App., infra, 2a. The SPRNCA

region is one of the most biologically diverse areas of

the United States, containing more than 100 species

of breeding birds and an additional 250 species of

migrant and wintering birds.The National Audubon

Society recognized the San Pedro area as its first

“Globally Important Bird Area” and the United Na-

tions World Heritage Program designated the area a

“world heritage natural area.” See, UNITED STATES

BUREAU OF LAND MANAGEMENT, SAN PEDRO RIPARIAN

NATIONAL CONSERVATION AREA, DESCRIPTION

http://www.blm.gov/az/st/en/prog/blm_special_areas/

ncarea/sprnca.html.

of the Attorney General’s functions under IIRIRA to the Secre-

tary of Homeland Security.

The Department of Homeland Security sought

from the Bureau of Land Management (“BLM”) a

perpetual right of way for the San Pedro border

fence. Under the NEPA, BLM is obligated to conduct

an initial environmental assessment before granting

a right of way and then undertake a further and

more detailed environmental impact statement

(“EIS”) if the agency’s proposed action may result in

significant environmental impacts. 42 U.S.C. §

4332(C); 40 C.F.R. § 1501. Despite the fact that its

environmental assessment disclosed the possibility of

serious impacts to the soils and natural resources of

the SPRNCA, BLM decided not to prepare an EIS

and granted the right of way allowing construction of

the fence along most of the SPRNCA’s southern bor-

der. App., infra, at 2a.

After the Department of the Interior failed to act

on petitioners’ request for an administrative stay of

the fence construction, petitioners filed this action in

the District Court for the District of Columbia under

the Administrative Procedure Act (“APA”), 5 U.S.C. §

551 et seq., challenging the BLM’s failure to comply

with NEPA. They also argued that the grant of the

right of way violated the Arizona-Idaho Conservation

Act of 1988, 16 U.S.C. § 460xx-1, which requires the

BLM to manage the SPRNCA “in a manner that con-

' serves, protects, and enhances the riparian area and

the aquatic, wildlife, archeological, paleontological,

scientific, cultural, educational, and recreational re-

sources of the conservation area” and to “only allow

such uses of the conservation area” that further the

purposes for which it was established.

Finding that petitioners had demonstrated a sub-

stantial likelihood of success on their claims of statu-

tory violations, the District Court for the District of

Columbia granted petitioners’ motion for a tempo-

rary restraining order barring construction of the

fence. App., infra, 3a.

Two weeks after the issuance of the temporary

restraining order, the Secretary invoked his author-

ity under Section 102(c) of IIRIRA to waive

“all federal, state, or other laws, regulations and le-

gal requirements of, deriving from, or related to the

subject of’ NEPA, the Arizona-Idaho Conservation

Act, and seventeen other laws, including the entirety

of the APA.? He asserted that the waiver of these

laws in the SPRNCA was “necessary * * * to ensure

the expeditious construction of the barriers and

roads,” but provided no explanation of the reasons

for that determination. 72 Fed. Reg. 60,870 (Oct. 26,

2007).

3 The other laws are: the Endangered Species Act, 16 U.S.C. §

1531 et seg.; the Federal Water Pollution Control Act (com-

monly referred to as the Clean Water Act), 33 U.S.C. § 1251 et

seq.; the National Historic Preservation Act, 16 U.S.C. § 470 et

seq.; the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq.; the

Clean Air Act, 42 U.S.C. § 7401 et seq.; the Archeological Re-

sources Protection Act, 16 U.S.C. § 470aa et seq.; the Safe

Drinking Water Act, 42 U.S.C. § 300f et seq.; the Noise Control

Act, 42 U.S.C. § 4901 et seq.; the Solid Waste Disposal Act, as

amended by the Resource Conservation and Recovery Act, 42

U.S.C. § 6901 et seg.; the Comprehensive Environmental Re-

sponse, Compensation, and Liability Act, 42 U.S.C. § 9601 et

seq.; the Federal Land Policy and Management Act, 43 U.S.C. §

1701 et seq.; the Fish and Wildlife Coordination Act, 16 U.S.C. §

661 et seq.; the Archaeological and Historic Preservation Act, 16

U:S.C. § 469 et seq.; the Antiquities Act, 16 U.S.C. § 431 et seq.;

the Historic Sites, Buildings, and Antiquities Act, 16 U.S.C. §

461 et seq.; the Wild and Scenic Rivers Act, 16 U.S.C. § 1281 et

seq.; and the Farmland Protection Policy Act, 7 U.S.C. § 4201 et

seq.

Following issuance of the waiver, the district

court vacated the temporary restraining order. Peti-

tioners then amended their complaint, asserting that

the waiver was invalid because Section 102’s grant of

waiver authority violated separation of powers prin-

ciples. App., infra, 6a.

The district court dismissed the action, holding

that the grant of waiver authority did not violate the

separation of powers. App., infra. 1a-20a. It first re-

jected petitioners’ argument that the waiver provi-

sion is invalid on grounds similar to the Line Item

Veto Act held unconstitutional in Clinton v. City of

New York. The court held that “the waiver provision

at issue here is not equivalent to the power to amend

or repeal duly enacted laws. And therefore the hold-

ing of Clinton is inapplicable.” Id. at 12a.

Next, the court considered petitioners’ argument

that the waiver authority “is an unconstitutional

delegation of legislative authority to the Executive

Branch.” Jd. at 13a. Notwithstanding the “unlimited

number of statutes that could potentially be encom-

passed by the Secretary’s exercise of his waiver

power,” and the absence of any opportunity for a ju-

dicial determination whether the Secretary’s actions

complied with the statutory standard, the court con-

cluded that the delegation is permissible because

“the Legislative Branch has laid down an intelligible

principle to guide the Executive Branch * * *.” Id. at

18a.

REASONS FOR GRANTING THE PETITION

The extraordinarily broad delegation of authority

at issue here violates the Constitution’s separation of

powers principles in two distinct ways. First, this

Court’s decisions upholding broad delegations of au-

thority against constitutional challenge consistently

point to the assurance—provided by the availability

of judicial review of administrative action—that the

administrative agency would comply with the statu-

tory standard prescribed by Congress for exercise of

that authority. There is no such assurance here.

Rather, Congress has expressly precluded such judi-

cial review. This Court has never upheld a broad

delegation in the absence of judicial review; neither

has any court of appeals.

This serious flaw is magnified further by Section

102’s serious intrusion on federalism interests. The

district court’s decision leaves the Secretary with

power to waive state and local laws, as he has in this

case (see page 7, supra). The breadth of that preemp-

tive authority—unconstrained by any judicial re-

view—confirms the legislative character of the ex-

traordinarily broad power conferred on the Secre-

tary.

Second, the delegation of authority here suffers

from the same defect as the line item veto invali-

dated in Clinton—it impermissibly bypasses the con-

stitutionally-mandated procedure for enacting,

amending or repealing a law by allowing the Secre-

tary to act as a super-legislature, exercising omnibus

authority to void any duly enacted law in any way

applicable to building the border fence, free of any

review of those determinations. That is the essence

of a legislative act.

This Court’s intervention to correct the lower

court’s erroneous decision is plainly warranted for

several reasons. The constitutional issue presented

here reaches to the heart of the principle of separa-

tion of powers that underlies our Nation’s framework

of democratic governance. The power to enact,

amend, and repeal the laws is the quintessential leg-

islative power vested exclusively in Congress by Ar-

ticle I. The authority granted to the Secretary by

Section 102(c) effectively permits the Executive

Branch to exercise that legislative authority, in defi-

ance of this basic constitutional structure.

In addition, this Court’s decision whether to grant

review must take account of Section 102(c)’s virtually

unprecedented elimination of any appeal as of right

of petitioners’ constitutional claims. If petitioners

were in the same position as other litigants in the

federal courts, and able to appeal as of right to the

D.C. Circuit, that court would either invalidate the

waiver authority or—by upholding the district

court’s ruling—create a conflict with the decisions of

other courts of appeals that have struck down broad

delegations without judicial review, a conflict that

would warrant this Court’s attention. Congress’s

elimination of any appeal as of right, either to the

courts of appeals or to this Court, leaves discretion-

ary review by this Court as the only means of obtain-

ing a definitive resolution of this serious constitu-

tional question.

Finally, the broad geographic reach of the fence

project—stretching thousands of miles along the Na-

tion’s borders—is likely to produce a parade of deci-

sions from different district courts. Because decisions

by district court judges do not bind other district

court judges, whether within or outside the same dis-

trict, Congress’s elimination of court of appeals’ re-

view leaves only this Court with the ability to resolve

the important constitutional issues raised by Section

102. Indeed, only this Court can resolve the conflict

between the decision below and the courts of appeals

that have addressed the issue presented here in dif-

ferent statutory contexts. These factors, along with

substantial questions about the Secretary’s compli-

ance with the statutory “necessity” standard—

prompted in part by the Secretary’s failure to provide

any justification whatever for most of the statutes

waived here—combine to necessitate review by this

Court.4

A. The Secretary’s Expansive Authority To

Waive Any Federal, State, Or Local Le-

gal Requirement Violates The Constitu-

tion’s Separation Of Powers.

Section 102’s enormous delegation of power is un-

precedented. Not only does the waiver authority ex-

tend to every federal, state, and local legal require-

ment, but the statute provides no right to a judicial

determination that the Secretary's exercise of this

authority complies with the standard established by

4 Construction has been substantially completed with respect to

the portion of the fence challenged in this lawsuit, but petition-

ers’ claims are not moot. A case becomes moot only where “a

court * * * cannot grant ‘any effectual relief whatever.” Calde-

ron v. Moore, 518 U.S. 149, 150 (1996) (quoting Mills v. Green,

159 U.S. 651, 653 (1895)). If petitioners prevail on their claim

before this Court that the Secretary’s action waiving NEPA and

other laws was unconstitutional, petitioners can seek effective

remedies under those laws to mitigate or avoid the harms

threatened by the fence, including substitution of vehicle barri-

ers in appropriate locations, such as streambeds, to allow wild-

life passage and reduce serious hydrological damage during

high rainfall events.

Congress. For that reason, this broad delegation of

authority violates the principles recognized in the

well-established nondelegation doctrine. The un-

checked and unreviewable authority to waive any

federal law in this case also violates the Constitu-

tion’s clear command, recognized by this Court in

Clinton v. City of New York, that Congress may not

confer upon the Executive Branch the power to re-

peal duly-enacted statutes.

1. Conferring Broad Administrative Au-

thority Without Judicial Review To

Check Compliance With The Statu-

tory Standard Constitutes An Uncon-

stitutional Delegation Of Legislative

Power.

This Court consistently has held that Congress

may delegate broad power to the Executive Branch

only if it “lay[s] down by legislative act an intelligible

principle to which the person or body authorized to

[act] is directed to conform.” Whitman v. American

Trucking Ass’ns, 531 U.S. 457, 472 (2001) (quoting

J.W. Hampton, Jr. & Co. v. United States, 276 U.S.

394, 409 (1928)).

The intelligible principle standard is not a formal-

istic requirement necessitating only the inclusion in

the statutory delegation of an acceptable incantation.

What is essential to avoid an unconstitutional dele-

gation is that the congressionally-specified limitation

effectively constrain the Executive's use of the dele-

gated authority.

Judicial review is the only effective means of en-

suring that Congress’s restrictions are obeyed. For

that reason, this Court has expressly linked the in-

telligible principle standard and judicial review, stat-

ing that delegations may be upheld “so long as Con-

gress provides an administrative agency with stan-

dards guiding its actions such that a court could

‘ascertain whether the will of Congress has been

obeyed.” Skinner v. Mid-Am. Pipeline Co., 490 U.S.

212, 216 (1989) (emphasis added) (quoting Mistretta

v. United States, 488 U.S. 361, 379 (1989)). This

Court has never upheld a delegation of broad author-

ity such as Section 102 that unequivocally precludes

all judicial review to assess the Executive’s compli-

ance with Congress’s constraining principle.

a. The “Intelligible Principle” Stan-

dard Requires Judicial Review To

Ensure Agency Compliance With

Congressional Delegations Of Au-

thority.

The Court repeatedly has recognized the critical

importance of judicial review in upholding broad

grants of administrative authority against nondele-

gation challenges. In Yakus v. United States, 321

U.S. at 436, for example, the Court explained that

Congress’s standard for the Executive's exercise of

the delegated authority must be sufficiently intelligi-

ble so that it is possible “in a proper proceeding to

ascertain whether the will of Congress has been

obeyed.” The Court has adhered to that explanation

in more recent decisions. See Skinner, 490 U.S. at

216; Mistretta, 488 U.S. at 379.

The Court’s willingness to uphold delegations

constrained by broad statutory principles is thus

predicated on the availability of judicial review to

give those principles concrete meaning:

The legislative process would frequently bog

down if Congress were constitutionally re-

quired to appraise before-hand the myriad

situations to which it wishes a particular pol-

icy to be applied and to formulate specific

rules for each situation. Necessity therefore

fixes a point beyond which it is unreasonable

and impracticable to compel Congress to pre-

scribe detailed rules * * *. Private rights are

protected by access to the courts to test

the application of the policy in the light

of these legislative declarations.

Am. Power & Light Co. v. SEC, 329 U.S. 90, 105

(1946) (emphasis added).

Touby v. United States, 500 U.S. 160 (1991), con-

firms this conclusion. There, a delegation of author-

ity permitting the Attorney General to schedule a

drug as a controlled substance temporarily was chal-

lenged on the ground that “the purpose of requiring

an ‘intelligible principle’ is to permit judicial review,”

but the statute precluded judicial review of these

temporary scheduling orders. Jd. at 168. This Court

did not dispute that judicial review is required; it

found that the opportunity to challenge a temporary

scheduling order in the context of a criminal prosecu-

tion was “sufficient to permit a court to ascertain

whether the will of Congress has been obeyed.” Ibid.

(quotations omitted). See also id. at 170 (Marshall,

J., concurring) (“judicial review perfects a delegated

lawmaking scheme by assuring that the exercise of

such power remains within statutory bounds”).

The absence of judicial review, on the other hand,

has been a factor in the Court’s decisions striking

down statutes on nondelegation grounds. In A.L.A.

Schechter Poultry Corp. v. United States, 295 U.S.

495, 533 (1935), the Court rejected a delegation of

authority to the President to establish “codes of fair

competition” regulating a trade or industry, noting in

part that the new scheme lacked the safeguards of

analogous Federal Trade Commission (FTC) deter-

minations, which included “judicial review [of FTC

decisions} to give assurance that the action of the

Commission is taken within its statutory authority.”

Ibid. Panama Refining Co. v. Ryan, 293 U.S. 388

(1935), involved a provision of the National Recovery

Act authorizing the President to ban interstate

shipments of oil produced in violation of state law.

The Court emphasized that an agency exercising de-

legated authority must both be constrained by a

“necessary principle that * * * an agency * * * pursue

the procedure and rules enjoined” and “show a sub-

stantial compliance therewith to give validity to its

action.” Id. at 432.

Lower courts also have consistently pointed to the

importance of judicial review to upholding broad del-

egations of authority to agencies. United States v.

Pastor, 557 F.2d 930, 941 (2d Cir. 1977) (rejecting

nondelegation challenge because “[t]he procedures

prescribed by Congress for regulation of the Attorney

General’s decision, coupled with the availability of

judicial review [under the statutory scheme] * * * as-

sure that the delegatee will not act capriciously or

arbitrarily”); United States v. Gordon, 580 F.2d 827,

839 (5th Cir. 1978) (same); Amalgamated Meat Cut-

ters v. Connally, 337 F. Supp. 737, 759 (D.D.C. 1971)

(“The safeguarding of meaningful judicial review is

one of the primary functions of the doctrine prohibit-

ing undue delegation of legislative powers.”). See also

South Dakota v. Dep't of Interior, 69 F.3d 878, 881

(8th Cir. 1995) (invalidating provision on nondelega-

tion grounds; court based its decision on the absence

judicial review), vacated, 519 U.S. 919 (1996);5 Unit-

5 Following the court of appeals’ decision, the Secretary of the

Interior promulgated a regulation providing for judicial] review

of his administrative determinations, and the Solicitor General

ed States v. Garfinkel, 29 F.3d 451, 459 (8th Cir.

1994) (observing that “judicial review is a factor

weighing in favor of upholding a statute against a

nondelegation challenge” and rejecting nondelegation

challenge due to availability of judicial review); Unit-

ed States v. Widdowson, 916 F.2d 587, 591 (10th Cir.

1990) (striking down, on nondelegation grounds, sta-

tute at issue in Touby because of lack of judicial re-

view), vacated, 502 U.S. 801 (1991) (remanding for

reconsideration in light of Towby’s holding that suffi-

cient judicial review was available).®

This requirement of judicial review is especially

important here in view of the Secretary’s conclusion

that Section 102 empowers him to waive not just fed-

eral law, but also “state, or other laws, regulations

and legal requirements of, deriving from, or related

to the subject” of nineteen specified federal statutes.

72 Fed. Reg. 60870 (Oct. 26, 2007). The scope of “an

filed a certiorari petition stating thai the court of appeals’ deci-

sion rested in part on the lack of judicial review and urging this

Court to grant review, vacate the lower court’s decision, and

remand the case to the Secretary for reconsideration in light of

the new regulation. The Court did just that. Dep't of the Interior

v. South Dakota, 519 U.S. 919 (1996). The government’s actions

themselves confirm the importance of judicial review to the

nondelegation inquiry.

§ Although the Ninth Circuit in United States v. Bozarov, 974

F.2d 1037 (9th Cir. 1992), rejected a nondelegation challenge to

the Export Administration Act notwithstanding the statutory

preclusion of review, the court rested its decision on its deter-

mination that “the Act * * * permit{s] courts to review * * *

claims that the Secretary has acted completely outside the

scope of his delegated powers” (id. at 1038)—thus recognizing

that some judicial oversight of the Executive’s exercise of dele-

gated authority is necessary to satisfy the constitutional stan-

dard.

administrative agency’s power to preempt state laws

* * * affects the allocation of powers among sover-

eigns.” Watters v. Wachovia Bank, 127 S. Ct. 1559,

1585 (2007) (Stevens, J., joined by Roberts, C.J., and

Scalia, J., dissenting). Without judicial review, how-

ever, the Secretary will be free to preempt any state

law he chooses, with no check to assure that his ac-

tions are consistent with Congress's delegation of au-

thority.

b. Delegations Without Judicial Re-

view Have Been Upheld Only In The

Limited Circumstances In Which

The “Intelligible Principle” Re-

quirement Does Not Apply.

Congress need not prescribe an intelligible prin-

ciple to guide administrative action with respect to

narrow delegations that fall within the “certain de-

gree of discretion, and thus of lawmaking, [that] in-

heres in most executive or judicial action.” Whitman,

531 U.S. at 475 (2001). See also ibid. (stating that

Congress “need not provide any direction” for ex-

tremely limited agency actions). Because judicial re-

view is linked to the intelligible principle require-

ment, the Court has not required administrative ac-

tions of this type to be subject to judicial review.

Questions about the availability of judicial review

of administrative action typically come before this

Court as issues under the provisions of the Adminis-

trative Procedure Act (“APA”), 5 U.S.C. § 551 et seq.

That statute provides that judicial review is not

available when review is precluded by statute (Sec-

tion 701(a)(1)), or when “agency action is committed

to agency discretion by law” (Section 701(a)(2)).

The Court has not found judicial review precluded

by statute when the administrative action in ques-

tion was grounded in a broad delegation subject to

the intelligible principle requirement. To the con-

trary, the Court has strained to find judicial review

in those circumstances. See, e.g., Reno v. Catholic

Social Services, 509 U.S. 43 (1993) (construing the

provision precluding review narrowly, and permit-

ting judicial review of administrative decisions that

did not involve individual applications for status ad-

justment).

The preclusion of review contemplated by Sec-

tion 701(a)(2) involves situations in which there is

“no law to apply” in assessing the permissibility of

agency action. Citizens To Preserve Overton Park,

Inc. v. Volpe, 401 U.S. 402, 410 (1971). That can oc-

cur only with respect to administrative actions that

need not be constrained by a congressionally articu-

lated “intelligible principle.” See generally Viktoria

Lovei, Comment, Revealing the Definition of APA

§ 701(a)(2) by Reconciling “No Law to Apply” with the

Nondelegation Doctrine, 73 U. Chi. L. Rev. 1047,

1065-67 (2006). Where an intelligible principle is not

necessary, neither is judicial review.

For example, the Court has upheld discretionary

action unconstrained by an “intelligible principle”

and therefore appropriately exempt from judicial re-

view under Section 701(a)(2) where the actions in

question fall within the inherent authority of the Ex-

ecutive Branch. In holding an employment termina-

tion decision by the CIA Director unreviewable on

statutory grounds, for example, the Court in Webster

v. Doe, 486 U.S. 592, 601 (1988), emphasized the in-

herent discretion necessary to effectuate the mission

of the CIA, noting that “the Agency’s efficacy, and

the Nation’s security, depend in large measure on

the reliability and trustworthiness of the Agency’s

employees.”? See also Heckler v. Chaney, 470 U.S.

821, 831-32, 837-38 (1985) (recognizing that Sec-

tion 701(a)(2) preclusion is appropriate because the

Executive’s prosecutorial function is appropriately

insulated from judicially enforceable legislative

standards).

Section 102 does not resemble these narrow situ-

ations. Rather it involves an extremely broad delega-

tion of authority that the government has recognized

is subject to the “intelligible principle” standard. Re-

ply Mem. in Supp. of Defs. Renewed Mot. To Dismiss

13-15 (Nov. 27, 2007). Because judicial review is an

essential element of that standard, and that review

is expressly precluded here, the waiver authority vio-

lates the nondelegation doctrine.

2. Section 102’s Stand-Alone, Omnibus

Waiver Authority Violates Art. I, § 7

Of The Constitution.

Section 102(c) resembles—and suffers from the

same constitutional flaw as—the line item veto pro-

vision held unconstitutional in Clinton v. City of New

York, 524 U.S. 417 (1998). Like the statute at issue

in Clinton, therefore, it cannot stand.

The essential characteristic of the authority con-

ferred on the President by the Line Item Veto Act, 2

7 The narrow authority of the CIA Director to terminate the

employment of individuals working in intelligence cannot rea-

sonably be equated with the authority of the DHS Secretary to

unilaterally waive “all legal requirements” at the federal, state,

or local level that he might deem, in his sole discretion, to be in

some way related to the construction of the San Pedro fence.

The former is the exercise of discretion inherent in executive

action not subject to the intelligible principle requirement; the

latter is exceedingly broad and is permissible only if Congress

provides the requisite principle and associated judicial review.

U.S.C. § 691 et seg., is that it gave the President “the

power to ‘cancel in whole’ three types of provisions”

that had been “signed into law’—budget authority,

direct spending, and tax benefits. Clinton, 524 US.

at 436. “With respect to both an item of new direct

spending and a limited tax benefit, the cancellation

preventied] the item ‘from having legal force or ef-

fect.” Id. at 437. “In both legal and practical effect,”

the Court concluded, “the President/’s cancellation of

provisions in two statutes] has amended two Acts of

Congress by repealing a portion of each.” Id. at 438.

The Court found “important differences” between

the process specified in the Constitution (Art. I, § 7)

for the President’s “return” of a bill to Congress and

his exercise of the cancellation authority:

The constitutional return takes place before

the bill becomes law; the statutory cancella-

tion occurs after the bill becomes law. The

constitutional return is of the entire bill; the

statutory cancellation is of only a part. Al-

though the Constitution expressly authorizes

the President to play a role in the process of

enacting statutes, it is silent on the subject of

unilateral Presidential action that either re-

peals or amends parts of duly enacted stat-

utes.

Clinton, 524 U.S. at 439. “What has emerged in these

cases from the President’s exercise of his statutory

cancellation powers, however, are truncated versions

of two bills that passed both Houses of Congress.

They are not the product of the ‘finely wrought’ pro-

cedures that the Framers designed.” Jd. at 440. See

also INS v. Chadha, 462 U.S. 919, 954 (1983) (“re-

peal of statutes, no less than enactment, must con-

form with Art. I”).

Section 102 has all of the characteristics that the

Court identified as objectionable in Clinton. It au-

thorizes the Secretary to “cancel[}” any previously-

enacted law and thereby deprive it of “legal force and

effect” with respect to the construction of the border

fence. Clinton, 524 U.S. at 437 (quotation marks

omitted). The effect of those previously-enacted laws

is thus “truncated” as a result of the Secretary’s ad-

ministrative action, not as a result of the procedure

specified in the Constitution for the repeal of stat-

utes by Congress. Id. at 440.

As in Clinton, Section 102 cannot be saved on the

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

(1892), in which the Court upheld the Tariff Act

against a constitutional challenge. The Tariff Act au-

thorized the president to suspend exemptions on ex-

port duties “for such time as he shall deem just” for

any countries which impose upon products of United

States duties which he “deem[s] to be reciprocally

unequal and unjust.” Jd. at 689 (quotation marks

omitted).

The Tariff Act provision was narrowly focused—

permitting only the waiver of requirements imposed

by the very statute in which the waiver provision

was contained. Section 102, by contrast, is free-

standing; confers extraordinarily broad authority to

waive any federal, state, or local law or legal re-

quirement; and exempts the Secretary’s action from

any judicial review other than for constitutional de-

fect.

Section 102’s free-standing nature; its unique

omnibus applicability to any law or legal require-

ment that otherwise would govern the Executive

Branch’s actions in constructing the fence,’ and the

absence of judicial review carry all of the essential

characteristics of legislative action. Statutes enacted

by Congress are reviewed only for constitutional de-

fect; administrative action, however, typically is sub-

ject to judicial review for compliance with statutory

standards. And Congress has plenary power to

amend or repeal existing statutes—or to enact new

measures—to address any subject within its broad

constitutional authority; administrative waiver au-

thority typically is focused on the requirements im-

posed by the particular statute granting the author-

ity or similar statutes.

The district court below pointed to a number of

waiver provisions, suggesting that because petition-

ers did not “question[] Congress’s ability to confer the

waiver power in these circumstances,” the Section

102 waiver authority is similarly beyond question.

App., infra, 10a. But none of the waiver provisions

cited by the district court (id. at 10a n.5), are as un-

8 The authority to waive “any legal requirement,” local, state, or

federal, in its entirety, while precluding statutory judicial re-

view, appears to be unprecedented. Memorandum from Stephen

R. Vina & Todd Tatelman, Legislative Attorneys, Am. Law Di-

vision, Cong. Research Serv. on Section 102 of H.R. 418, Waiver

of Laws Necessary for Improvement of Barriers at Borders 2-4

(Feb. 9, 2005); Blas Nufiez-Neto & Stephen Vina, Border Secu-

rity: Barriers Along the U.S. International Border 8 (Cong. Re-

search Serv. Dec. 12, 2006).

Other waiver provisions are cabined by (1) allowing waiver

only of statutory requirements contained in the same statute

that authorizes the waiver, (2) specifically enumerating the

laws that may be waived, or (3) allowing waiver only of a group-

ing of similar laws. Nufiez-Neto & Vina, supra, at 8. See, e.g.,

10 U.S.C. § 1107(a); 22 U.S.C. § 2375(d); 29 U.S.C. § 793; 42

U.S.C. § 6212(b); 42 U.S.C. § 6393(a)(2); 50 U.S.C. § 2426(e).

constrained as Section 102—they are limited toa

specific law or category of laws and none expressly

precludes judicial review.° Like the waiver authority

at issue in Field, they provide no basis for sustaining

Section 102’s broad grant of power.

The Secretary’s modifications of existing laws are

no less intrusive on the constitutional scheme than

the line item vetoes at issue in Clinton. Unlike rule-

making or adjudicatory power, which authorizes

agencies to create rules and standards in certain

specialized fields, authorizing an Executive Branch

official selectively to repeal any existing law that

otherwise would constrain his action, without any

judicial review to determine whether he has com-

plied with the standard set by Congress, raises un-

* The Intelligence Authorization Act of 1991, 10 U.S.C. § 433,

for instance, explicitly confines the laws that can be waived to

those “pertaining to the management and administration of

Federal agencies” and the authority expired after four years.

The Toxic Substances Control Act of 1976, 15 U.S.C. § 2621,

confined its waiver authority to other provisions of the act itself

and required congressional notification as well as a written re-

cord of the waiver’s basis for in camera review in judicial pro-

ceedings. The Trade Sanctions Reform and Export Enhance-

ment Act of 2000, 22 U.S.C. § 7207(a)(3), simply permits the

President to lift restrictions on aid to Iran, Libya, North Korea,

and Sudan for national security or humanitarian reasons. Sec-

tion 7117 of the No Child Left Behind Act of 2001, 20 U.S.C. §

7426(e), again confines the waiver authority to only a “regula-

tion, policy, or procedure promulgated by that department [re-

sponsible for providing education and related services provided

to Indian students].”

The waiver provision in the Trans-Alaskan Pipeline Authori-

zation Act (“TAPAA”), 43 U.S.C. § 1652, is broad, but its exer-

cise is expressly subject to judicial review for compliance with

the standard specified by Congress. See id. § 1652(d).

precedented lawmaking concerns. See The Federalist

No. 47, at 301 (James Madison) (C. Rossiter ed.,

1961) (“The accumulation of all powers, legislative,

executive, and judiciary, in the same hands * * * may

justly be pronounced the very definition of tyr-

anny.”). Because the sweeping waiver power con-

veyed by Section 102 permits the Secretary effec-

tively to place himself above all existing law—and

thus expands Executive authority beyond the bounds

of Article II—Clinton requires the invalidation of

Section 102.

B. The Questions Presented Are Both Le-

gally Significant And Practically Impor-

tant.

The extraordinary elimination of any appeal as of

right with respect to the constitutional questions

presented here means that the important issues

raised by Section 102—issues on which courts of ap-

peals have reached conclusions different from the

court below—can be resolved only by this Court’s in-

tervention. Congress’s decision to bypass the courts

of appeals does not weigh against review by this

Court; to the contrary, it is a factor strongly favoring

a grant of certiorari here.

Moreover, the questions regarding the constitu-

tionality of Section 102 presented here inevitably

will recur as the Secretary issues new waivers, which

then are challenged in various district courts in the

seventeen States that may contain segments of the

border fence. Because no district court’s resolution of

these issues will be binding on the next district court

to consider them, a decision by this Court is the only

way to prevent this duplicative litigation. Review by

this Court is therefore plainly warranted.

1. Section 102(c)’s Virtually Unprece-

dented Restriction Of Appellate Re-

view Necessitates This Court’s Inter-

vention.

Congress’s approach to appellate review for cases

involving Section 102(c), combined with the state of

the law in the lower courts, warrants review by this

Court to address the clear inconsistency between the

decision below and the decisions of the courts of ap-

peals.

As a threshold matter, the elimination of an ap-

peal as of right—either to the courts of appeals or to

this Court—sharply distinguishes this case from the

norm in the federal system. Generally, when Con-

gress bypasses the courts of appeals it provides for a

direct appeal to this Court.!° Here, however, it pro-

vided only for discretionary review on certiorari. As

far as we have been able to determine, that approach

is virtually unprecedented.!!

Were this case reviewable by the D.C. Circuit,

that court might well be expected to follow the rea-

soning of the other courts of appeals in finding seri-

10 See, e.g., Balanced Budget and Emergency Deficit Control Act

of 1985, 2 U.S.C. §§ 901 & 922(a)(5)(b) (granting that decisions

of the district court “shall be reviewable by appeal directly to

the Supreme Court of the United States” and creating a “duty”

for the district court and the Supreme Court “to advance on the

docket and to expedite to the greatest possible extent the dispo-

sition” of any case challenging the constitutionality of the Act);

Line Item Veto Act of 1996, 2 U.S.C. § 692(b) & (c) (same).

‘t The only other example we have located is the Trans-Alaskan

Pipeline Authorization Act. See 43 U.S.C. § 1652. But the TA-

PAA—unlike Section 102(c) of IIRIRA—permitted the district

court to adjudicate claims that the agency had exceeded its own

statutory authority. See note 9, supra.

ous constitutional problems with a statute, like Sec-

tion 102(c), that absolutely precludes review for com-

pliance with Congress’s mandate (see pages 15-16,

supra). Alternatively, the D.C. Circuit might have

affirmed the lower court, creating a conflict among

the courts of appeals on this question that would

warrant review by this Court.

The lack of any opportunity for appellate review,

combined with the conflict between the result here

and the approach taken by other courts and the im-

portance of the legal issue, provides a strong justifi-

cation for review by this Court. The opposite ap-

proach—denying review on the ground that there

has been no decision by a court of appeals—would

mean that Congress’s decision to preclude an appeal

as of right would effectively preclude review by this

Court as well. The Court should reject that result

and grant review.

2. Review Is Necessary To Resolve Con-

clusively The Constitutionality Of

The Section 102 Waiver Authority.

Without review by this Court, relitigation of the

serious, unsettled constitutional questions raised by

Section 102 is likely to recur with each exercise of

the Secretary’s waiver authority. And given the

length of the Nation’s borders, that authority may

well be exercised with considerable frequency.

The waiver authority applies generally to all bar-

riers and roads “in the vicinity of the United States

border to deter illegal crossings in areas of high ille-

gal entry into the United States.” 8 U.S.C. § 1103

note. Thus, it potentially encompasses an area far in

excess of the length of the southern border alone.

Blas Nufiez-Neto & Stephen Vina, Border Security:

Fences Along the U.S. International Border 1-2

(Cong. Research Serv. Jan. 11, 2006) (indicating that

the “San Diego sector” comprises some 7000 square

miles).

Indeed, Congress recently mandated construction

of a barrier along at least 700 miles of the southwest

border. Consolidated Appropriations Act, 2008, Pub.

L. No. 110-161, 121 Stat. 1844. The project is already

garnering significant attention, and expansion of the

fence is expected. See, e.g., Kevin Johnson, In

Southwest Fixing the Fence Never Ends, USA Today,

Sept. 16, 2007, at 1A.

The Secretary inevitably will issue additional

waivers in connection with construction of these ad-

ditional segments of the border fence. The waiver at

issue here is not the only one issued thus far. See 72

Fed. Reg. 2535 (Jan. 19, 2007) (waiving federal,

state, and other laws with respect to construction in

the Barry M. Goldwater Range in Arizona). And Si-

erra Club v. Ashcroft, No. 04-0272, 2005 U.S. Dist.

LEXIS 44244 (S.D. Cal. Dec. 12, 2005), involved a

virtually identical constitutional challenge to waiver

authority under a predecessor statute of Section

102(c).

While a district court decision resolves the par-

ticular controversy before the court, it lacks prece-

dential effect. See, e.g., Gould v. Bowyer, 11 F.3d 82,

84 (7th Cir. 1993) (Posner, J.) (“[a] district court de-

cision binds no judge in any other case, save to the

extent that doctrines of preclusion (not stare de-

cisis)”); Fox v. Acadia State Bank, 937 F.2d 1566,

1570 (11th Cir. 1991) (“[a] district court is not bound

by another district court’s decision, or even an opin-

ion by another judge of the same district court”)

(quotation marks omitted).

> ne

Continued litigation in district courts that apply

varying standards fosters duplicative lawsuits and

creates uncertainty. Congress did not restrict consti-

tutional challenges to the waiver authority to the

District Court for the District of Columbia, meaning

that each district court in which a controversy

arises—and the fence could run through a multitude

of district courts in seventeen States—will have to

resolve the legal issues anew. The preclusion of ap-

pellate review creates the potential for conflicting ju-

dicial determinations in each individual judicial dis-

trict that shares a border with Canada or Mexico.

This repeated litigation is wasteful—of both judi-

cial resources and the resources of the parties. This

Court should intervene to resolve the issue.

3. Review Is Particularly Appropriate

Here Because There Are Strong Indi-

cations That The Secretary’s Waiver

Exceeded His Statutory Authority.

The impact of the unconstitutional preclusion of

judicial review is particularly egregious here because

it is far from clear that the Secretary’s waiver com-

plies with the statutory standard.

The Secretary provided no explanation whatever

for his decision. The order simply contains the con-

clusory assertion that he determined the waiver to be

“necessary.” 72 Fed. Reg. 60,870 (Oct. 26, 2007).

In particular, there is no explanation why it was

“necessary” to waive statutes that had not been

raised in this litigation—sixteen statutes ranging

from the Clean Water Act and the Safe Drinking Wa-

ter Act, to the Noise Control] Act and the Farmland

Protection Policy Act. See note 3, supra. It appears

that the Secretary decided simply to exempt the

fence construction from any statute that might con-

ceivably apply, with no consideration of whether the

waiver of each particular statute was “necessary.”

But Congress did not authorize the Secretary to

exempt from otherwise applicable law his actions or

the actions of other agencies simply because it was

“convenient” or “expedient”; it required a determina-

tion of “necessity.” The Secretary’s blunderbuss ap-

proach gives little indication that the Secretary acted

in accordance with that congressional standard; ra-

ther, it provides considerable evidence that he did

not.

Even with respect to NEPA’s Environmental Im-

pact Statement (“EIS”) requirement, the Secretary’s

conclusion here that a waiver was “necessary” is sus-

pect in light of his decision one month earlier—in

September 2007—to prepare an EIS for construction

of the border fence in an area approximately ten

times larger than that covered by the waiver here.

Letter from Michael Chertoff, Secretary of Homeland

Security, to Sen. Joseph Lieberman, Chairman of the

Sen. Comm. on Homeland Security and Governmen-

tal Affairs, 5-6 (Feb. 14, 2008). If the Executive

Branch could satisfy NEPA’s requirements there,

why was a waiver with respect to the SPRNCA fence

segment “necessary”? Review by this Court is essen-

tial to make clear that the Constitution requires ju-

dicial review to ensure that broad delegations to the

Executive Branch such as the waiver authority here

are exercised in accordance with the statutory limits

established by Congress.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

ANDREW J. PINCUS DAN KAHAN

CHARLES A. ROTHFELD Counsel of Record

Mayer Brown LLP TERRI-LEI O’MALLEY

1909 K Street, NW Yale Law School

Washington, DC 20036 Supreme Court Clinic

(202) 263-3000 127 Wali Street

New Have, CT 06511

ROBERT DREHER (203) 432-4800

BRIAN SEGEE

Defenders of Wildlife Counsel for {*stitioner

1130 17th Street NW

Washington, DC 20006

(202) 772-3225

Counsel for Defenders of

Wildlife

MARCH 2008

APPENDIX

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DEFENDERS OF WILDLIFE, et al.,

Plaintiffs,

MICHAEL CHERTOFF,

Secretary Of Homeland Security, et ai.,

Defendants.

Civil Action No. 07-1801 (ESH)

MEMORANDUM OPINION

Plaintiffs Defenders of Wildlife and the Sierra

Club initially brought this lawsuit to challenge de-

fendants’ compliance with several environmental

statutes with respect to the construction of physical

barriers and roads along the U.S.-Mexico Border

within the San Pedro Riparian National Conserva-

tion Area (“SPRNCA”) in Arizona. Plaintiffs have

now amended their complaint to allege that the Sec-

retary of Homeland Security’s waiver of numerous

federal environmental laws under Section 102 of the

REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat.

231, 306, 8 U.S.C. § 1103 note, is unconstitutional.

Because the Court finds that the waiver does not of-

fend the principles of separation of powers or the

nondelegation doctrine, it rejects plaintiffs’ constitu-

tional attack, and it will grant defendants’ motion to

dismiss.

BACKGROUND

At the direction of Congress, the Department of

Homeland Security (“DHS”) has undertaken to con-

struct “physical barriers and roads” at various points

along the United States’ border with Mexico in order

“to deter illegal crossings in areas of high illegal en-

try into the United States.” 8 U.S.C. § 1103 note. On

or about September 29, 2007, the Army Corps of En-

gineers, on behalf of DHS, began constructing border

fencing, an accompanying road and drainage struc-

tures within the SPRNCA, an area which plaintiffs

describe as “a unique and invaluable environmental

resource” and “one of the most biologically diverse

areas of the United States.”! Pls.’ Mem. in Sup. of

Mot. for Temporary Restraining Order (“TRO Mot.”]

at 1, 4-5. '

The SPRNCA is managed by the Bureau of Land

Management (“BLM”), which issued a _ perpetual

right of way to DHS for the area of the fence project.

(Id. at 1; Defs.’ TRO Opp’n at 1, 3.) Before granting

the right of way, BLM completed an Environmental

Assessment (“EA”), which concluded that the pro-

posed fencing would have no significant impact on

the environment when paired with certain mitigation

measures, and that an Environmental Impact

Statement (“IS”) was therefore not required by the

National Environmental Policy Act of 1969

(“NEPA”), 42 U.S.C. § 4821 et seq. (See Ex. A to Defs.’

TRO Opp’n at 3-4.)

After initially attempting to pursue administra-

tive remedies within the BLM (see Pls.’ TRO Mot. at

2), plaintiffs filed this action on October 5, 2007, and

simultaneously moved for emergency injunctive re-

1 The challenged fence construction required excavation on up

to 225 of the SPRNCA’s 58,000 acres, and the proposed fence

segments will cover approximately 9,938 feet at the border

when completed. (Defs.’ Opp’n to Pls.’ Mot. for Temporary Re-

straining Order [“TRO Opp’n’] at 3; Ex. A to Defs.. TRO Opp’n

{[BLM’s EA and Finding of No Significant Impact] at 12).

lief to halt the construction of the fence within the

SPRNCA. In support of their motion, plaintiffs ar-

gued that BLM’s EA was inadequate and that NEPA

required the preparation of a full IS. (See id. at 8-18.)

They also argued that the BLM’s grant of the right-

of-way violated the Arizona-Idaho Conservation Act

of 1988, which directs the BLM to manage the

SPRNCA “in a manner that conserves, protects, and

enhances the riparian area and the aquatic, wildlife,

archeological, paleontological, scientific, cultural,

educational, and recreational resources of the con-

servation area” and to “only allow such uses of the

conservation area” that further the purposes for

which it was established. 16 U.S.C. § 460xx-1. After

conducting a hearing on October 10, 2007, the Court

granted plaintiffs’ motion for a Temporary Restrain-

ing Order (“TRO”), finding that plaintiffs had dem-

onstrated a substantial likelihood of success on the

merits with respect to their NEPA claims and that

the balance of the equities favoreu plaintiffs. In re-

sponse to the Court’s order, defendants halted con-

struction of the fence within the SPRNCA.

Approximately two weeks later on October 26,

2007, DHS Secretary Michael Chertoff published a

notice in the Federal Register waiving NEPA, the

Arizona-Idaho Conservation Act, and eighteen other

laws with respect to the construction of the SPRNCA

fence under the authority granted to him by section

102 of the REAL ID Act of 2005.2 See 72 Fed. Reg.

60,870 (Oct. 26, 2007); 8 U.S.C. § 1103 note. Section

102 of the REAL ID Act gives the Secretary of Home-

2 Section 102 of the REAL ID Act amended section 102 of the

Illegal Immigration Reform and Immigrant Responsibility Act

of 1996 (“IIRIRA”), Pub. L. 104-208, 110 Stat. 3009- 546, 3009-

554, and both are codified at 8 U.S.C. § 1103 note.

land Security “the authority to waive all legal re-

quirements” that he determines “necessary to ensure

expeditious construction” of border fences and roads

“to deter illegal crossings in areas of high illegal en-

try.” 8 U.S.C. § 1103 note. This provision also limits

judicial review of claims arising from the Secretary's

exercise of the waiver authority, and it allows the

district courts to consider only those claims that al-

lege a violation of the Constitution.

3 The REAL ID Act’s waiver provision states:

(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 con-

struction of the barriers and roads under this section. Any such

decision by the Secretary shall be effective upon being pub-

lished in the Federal Register.

(2) Federal court review.—

(A) In general.— The district courts of the United States shall

have exclusive jurisdiction to hear all causes or claims arising

from any action undertaken, or any decision made, by the Sec-

retary 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 shal] not have

jurisdiction to hear any claim not specified in this subpara-

graph.

(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 Secre-

tary 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.

In his Federal Register notice, the Secretary stated

that the area within the SPRNCA covered by this

Court’s TRO was “an area of high illegal entry,” that

“there [wa]s presently a need to construct fixed and

mobile barriers” in the area, and that it was there-

fore “necessary” for him to exercise the REAL ID

Act’s waiver authority “[iJn order to ensure the expe-

ditious construction of the barriers and roads that

Congress prescribed ... .”4 72 Fed. Reg. 60,870. Upon

notification of the Secretary’s waiver, the Court va-

REAL ID Act § 102(c), 8 U.S.C. § 1103 note.

4 In addition to NEPA and the Arizona-Idaho Conservation Act,

the Secretary also waived the Endangered Species Act, 16

U.S.C. § 1531 et seq.; the Clean Water Act, 33 U.S.C. § 1251 et

seq.; the National Historic Preservation Act, 16 U.S.C. § 470 et

seq.; the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq.; the

Clean Air Act, 42 U.S.C. § 7401 et seqg.; the Archeological Re-

sources Protection Act, 16 U.S.C. § 470aa et seq.; the Safe

Drinking Water Act, 42 U.S.C. § 300f et seg.; the Noise Control

Act, 42 U.S.C. § 4901 et seq.; the Solid Waste Disposal Act, as

amended by the Resource Conservation and Recovery Act, 42

U.S.C. § 6901 et seq.; the Comprehensive Environmental Re-

sponse, Compensation, and Liability Act, 42 U.S.C. § 9601 et

seq.; the Federal Land Policy and Management Act, 43 U.S.C.

§ 1701 et seq.; the Fish and Wildlife Coordination Act, 16 U.S.C.

§ 661 et seq.; the Archaeological and Historic Preservation Act,

16 U.S.C. § 469 et seqg.; the Antiquities Act, 16 U.S.C. § 431 et

seq; the Historic Sites, Buildings, and Antiquities Act,

16 U.S.C. § 461 et seq.; the Wild and Scenic Rivers Act,

16 U.S.C. § 1281 et seq.; the Farmland Protection Policy Act,

7 U.S.C. § 4201 et seq.; and the Administrative Procedure Act,

5 U.S.C. § 551 et seg. The Secretary waived all of these laws “in

their entirety, with respect to the construction of roads and

fixed and mobile barriers . . . in the area starting approximately

4.75 miles west of the Naco, Arizona Port of Entry to the west-

ern boundary of the SPRNCA and any and all land covered by

the TRO.” 72 Fed. Reg. 60,870.

cated the TRO. Defenders of Wildlife v. Chertoff, Civ.

No. 07-1801, Minute Order (Oct. 26, 2007). Plaintiffs

subsequently amended their complaint to allege that

the waiver provision of the REAL ID Act violates the

separation of powers principles embodied in Articles

I and II of the Constitution because it “impermissibly

delegates legislative powers to the DHS Secretary, a

politically-appointed Executive Branch official.” (Am.

Compl. 4] 36-38.)

In response, defendants have moved to dismiss

plaintiffs’ amended complaint under Rules 12(b)(1)

and (6). Defendants argue, based on the Supreme

Court’s “nondelegation” line of cases, that the REAL

ID Act’s waiver provision is a constitutionally per-

missible delegation of legislative power to the Execu-

tive Branch because it provides the Secretary with

an “intelligible principle” that “clearly delineate[s]

the general policy, the public agency which is to ap-

ply it, and the boundaries of th[e] delegated author-

ity” — i.e., that he may only waive the legal re-

quirements that he “determines necessary to ensure

expeditious construction of the barriers and roads.”

(Defs.’ Renewed Mot. to Dismiss at 3-4 (quoting Mis-

tretta v. United States, 488 U.S. 361, 372-73 (1989))),

and 8 U.S.C. § 1103 note (internal quotation marks

omitted)). In support of their argument, defendants

also emphasize that “Congress may delegate in even

broader terms” than otherwise permissible in mat-

ters of immigration policy, foreign affairs, and na-

tional security, because “the Executive Branch al-

ready maintains significant independent control”

over these areas. (Defs.’ Renewed Mot. to Dismiss at

4-5.)

ANALYSIS

The only issue presented is whether the Secre-

tary’s waiver under the REAL ID Act is constitu-

tional. First and foremost, plaintiffs argue that the

REAL ID Act’s waiver provision is unconstitutional

under Clinton v. City of New York, 524 U.S. 417

(1998), because it “provides the DHS Secretary with

a roving commission to repeal, in his sole discretion,

any law in all 50 titles of the United States Code that

he concludes might impede construction of a border

wall.” (Pls.’ Opp’n at 3-4 (emphasis omitted).) In

Clinton, the Supreme Court struck down the Line

Item Veto Act of 1996, which gave the President the

authority to “cancel” certain federal spending items

that had been passed by Congress, because the Court

found that the Act — “[iJn both legal and practical

effect” — allowed the President to amend Acts of

Congress by repealing portions of them. Clinton, 524

U.S. at 438. Article I of the Constitution requires

that all federal legislation pass both houses of Con-

gress, and “before it become a Law, be presented to

the President of the United States: If he approve he

shall sign it, but if not he shall return it, with his Ob-

jections to that House in which it shall have origi-

nated, who shall enter the Objections at large on

their Journal, and proceed to reconsider it.” U.S.

CONST. art. art. I, § 7. The cancellation procedures in

the Line Item Veto Act, the Court held, were uncon-

stitutional because “[t]here is no provision in the

Constitution that authorizes the President to enact,

to amend, or to repeal statutes.” Clinton, 524 U.S. at

438. “Amendment and repeal of statutes, no less

than enactment, must conform with” the bicameral-

ism and presentment requirements of Article I. INS

v. Chadha, 462 U.S. 919, 954 (1983).

Plaintiffs argue that “(t]he power granted by sec-

tion 102 of the REAL ID Act to the Secretary of DHS

to ‘waive’ the applicability of any law that would oth-

erwise apply to border wall and fence construction

projects is unmistakably the power partially to re-

peal or amend such laws,” and thus, that Clinton

“squarely governs this case.” (Pls.’ Opp’n at 9-10.)

The laws waived by the Secretary’s federal register

notice are “repealled],” plaintiffs argue, “to the ex-

tent that they otherwise would have applied to wall

and road construction” within the SPRNCA, and the

waiver is therefore an “impermissible exercise of leg-

islative authority.” (Pls.’ Surreply at 1, 2.)

Plaintiffs’ arguments are unavailing, however,

because the waiver provision of the REAL ID Act is

not equivalent to the partial repeal or amendment at

issue in Clinton. See Sierra Club v. Ashcroft, Civ. No.

04-272, 2005 U.S. Dist. LEXIS 44244, *21 (S.D. Cal.

Dec. 12, 2005) (distinguishing the waiver of laws un-

der the REAL ID Act from their “repeal”). It was

“critical” to the Clinton Court’s decision that the Line

Item Veto Act essentially “g{a]ve[] the President the

unilateral power to change the text of duly enacted

statutes.” Clinton, 524 U.S. at 446-47. The line items

cancelled by the President would no longer have any

“legal force or effect” under any circumstance. Id. at

437 (citing 2 U.S.C. §§ 691e(4)(B)-(C)). Similarly, in

Byrd v. Raines, 956 F. Supp. 25, 37 (D.D.C. 1997)

(vacated on other grounds), the predecessor case to

Clinton, Judge Jackson of this Court reasoned that

cancellation under the Line Item Veto Act “forever

render[ed] a provision of federal law without legal

force or effect, so the President who canceled an item

and his successors must turn to Congress to reau-

thorize the foregone spending.” Jd. at 37. Judge

Jackson also distinguished the Line Item Veto Act’s

cancellation provision from the President’s tradi-

tional authority to impound — or refrain from spend-

ing — funds appropriated by Congress, explaining:

“Whereas delegated authority to impound is exer-

cised from time to time, in light of changed circum-

stances or shifting executive (or legislative) priori-

ties, cancellation occurs immediately and irreversibly

.... Id. at 36. He therefore held that the cancella-

tion provision violated the Presentment Clause and

constituted “a radical transfer of the legislative

power to repeal statutory law.” Jd. at 33, 35 (“The

President’s cancellation of an item unilaterally ef-

fects a repeal of statutory law such that the bill he

signed is not the law that will govern the Nation.

That is precisely what the Presentment Clause was

designed to prevent.”).

The REAL ID Act’s waiver provision differs sig-

nificantly from the Line Item Veto Act. The Secre-

tary has no authority to alter the text of any statute,

repeal any law, or cancel any statutory provision, in

whole or in part. Each of the twenty laws waived by

the Secretary on October 26, 2007, retains the same

legal force and effect as it had when it was passed by

both houses of Congress and presented to the Presi-

dent. The fact that the laws no longer apply to the

extent they otherwise would have with respect to the

construction of border barriers and roads within the

SPRNCA does not, as plaintiffs argue, transform the

waiver into an unconstitutional “partial repeal” of

those laws. By that logic, any waiver, no matter how

limited in scope, would violate Article I because it

would allow the Executive Branch to unilaterally

“repeal” or nullify the law with respect to the limited

purpose delineated by the waiver legislation. Yet, as

plaintiffs acknowledge, there are myriad examples of

10a

waiver provisions in federal statutes,5 and they have

not questioned Congress’s ability to confer the waiver

power in these circumstances. (See Pls.’ Surreply at

6.) If the REAL ID Act’s waiver provision is unconsti-

tutional under Clinton, numerous other statutory

authorizations of executive waivers would also be in-

valid. Such a conclusion is certainly not supportable

under Clinton or any other case cited by plaintiffs.

Nor can plaintiffs gain any solace by citing Clin-

ton’s discussion of Marshall Field & Co. v. Clark, 143

U.S. 649 (1892), in which the Supreme Court upheld

the constitutionality of a suspension provision in the

Tariff Act of 1890. (See Pls.” Opp’n at 24.) The Tariff

Act exempted certain import commodities from tar-

iffs, but directed the President to “suspend” the ex-

emption with respect to any country that he found

imposed “reciprocally unequal and unreasonable” du-

ties on American exports. Field, 143 U.S. at 680.

5 See, e.g., 10 U.S.C. § 433 (Secretary of Defense, “in connection

with a commercial activity,” may waive compliance with “cer-

tain Federal laws or regulations pertaining to the management

and administration of Federal agencies” if they would “create

an unacceptable risk of compromise of an authorized intelli-

gence activity.”); 15 U.S.C. § 2621 (EPA may waive compliance

with Toxic Substances Act “upon a request and determination

by the President that the requested waiver is necessary in the

interest of national defense.”); 20 U.S.C. § 7426(e) (Secretaries

of the Interior, Labor, Health and Human Services, and Educa-

tion “[njotwithstanding any other provision of law . . . shall

have the authority to waive any regulation, policy, or procedure

promulgated by [their] department” necessary for the integra-

tion of education and related services provided to Indian stu-

dents.); 22 U.S.C. § 7207(a)(3) (President may waive a statutory

prohibition on assistance to certain countries “to the degree [he]

determines that it is in the national security interest of the

United States to do so, or for humanitarian reasons.”).

lla

Clinton distinguished the Tariff Act from the Line

Item Veto Act, identifying “three critical differences”

between the two,® and plaintiffs argue that these dif-

ferences demonstrate that the REAL ID Act’s waiver

provision must be invalidated under Clinton. Clin-

ton, 524 U.S. at 443-44. (See Pls.’ Opp’n at 25.)

However, in distinguishing Field, the Clinton

Court did not purport to adopt a three-part test

based on these distinctions to determine whether a

particular waiver provision is constitutional. Rather,

the deciding factor for the Clinton Court was that the

cancellations under the Line Item Veto Act were the

“functional equivalent of repeals of Acts of Congress,”

while the suspensions under the Tariff Act were “not

exercises of legislative power.” Clinton, 524 U.S. at

444. In particular, the Court noted that the Line

Item Veto Act authorized the President “to effect the

repeal of laws[| for his own policy reasons,” thereby

“rejecting the policy judgment made by Congress and

relying on his own policy judgment.” Jd at 444, 45.

By contrast, when the DHS Secretary exercises his

waiver authority under the REAL ID Act, he is act-

ing as Congress has expressly directed — i.e., to “ex-

peditious[ly]” construct “physical barriers and roads .

. . to deter illegal crossings in areas of high illegal en-

try ....” 8 U.S.C. § 1103 note. And more impor-

tantly, the Clinton Court distinguished the Tariff Act

6 Specifically, the Court found that in the Tariff Act, but not in

the Line Item Veto Act, (1) “the exercise of the suspension pow-

er was contingent upon a condition that did not exist” when the

statute was passed; (2) there was a duty to suspend or waive

once a defined contingency had arisen; and (3) whenever the

President suspended an exemption, he was executing the ex-

press congressional policy embodied in the statute. Clinton, 524

U.S. at 443-44

12a

from the Line Item Veto Act on the ground that it re-

lated to “the foreign affairs arena,” a realm in which

the President has “a degree of discretion and freedom

from statutory restriction which would not be admis-

sible were domestic affairs alone involved.” Jd. at 445

(quoting United States v. Curtiss-Wright Export

Corp., 299 U.S. 304, 320 (1936)) (internal quotation

marks omitted); see also Field, 143 U.S. at 691 (“[I]n

the judgment of the legislative branch of govern-

ment, it is often desirable, if not essential for the pro-

tection of the interests of our people . . . to invest the

President with large discretion in matters arising out

of the execution of statutes relating to trade and

commerce with other nations.”) The REAL ID Act’s

waiver provision, like the Tariff Act, relates to for-

eign affairs and immigration control — another area

in which the Executive Branch has traditionally ex-

ercised a large degree of discretion. For these rea-

sons, the Clinton Court’s discussion of Field does not

support plaintiffs’ arguments.

In sum, the waiver provision at issue here is not

equivalent to the power to amend or repeal duly en-

acted laws, and therefore the holding of Clinton is

inapplicable. This conclusion finds additional sup-

port in Judge (now Chief Justice) Roberts’ concurring

opinion in Acree v. Republic of Iraq, 370 F.3d 41, 64

n.3 (D.C. Cir. 2004), where he was addressing the va-

lidity of a waiver provision contained in the Emer-

gency Wartime Supplemental Appropriations Act

(“EWSAA”). Section 1503 of the EWSAA authorizes

the President to “make inapplicable to Iraq Section

620A of the Foreign Assistance Act of 1961 and ‘any

other provision of law that applies to countries that

have supported terrorism.” Jd. at 60 (Roberts, J.,

concurring) (emphasis added by Judge Roberts).

Judge Roberts summarily dismissed in a footnote

13a

plaintiffs’ argument that “the grant of such authority

to the President is unconstitutional in light of [Clin-

ton} because such a grant would empower the Presi-

dent to... ‘fepeal fa statute] solely as it relates to

Iraq.” Id. at 64 n.3 (quoting appellees’ brief). Rather,

he found that “(t]he actions authorized by the EW-

SAA are a far cry from the line-item veto at issue in

Clinton, and are instead akin to the waivers that the

President is routinely empowered to make in other

areas, particularly in the realm of foreign affairs.” Id;

see also Jacobsen v. Oliver, 451 F. Supp. 2d 181, 193

(D.D.C. 2006) (citing Acree, 370 F.3d at 64'n. 3).

Plaintiffs also argue more generally that the

waiver authority violates fundamental separation of

powers principles because it is an unconstitutional

delegation of legislative power to the Executive

Branch. “[T]he fundamental constitutional role of the

Executive Branch under Article II,” plaintiffs argue,

“is to ‘faithfully execute’ — not selectively void — the

laws. The Secretary’s attempt to repeal unilaterally

nineteen laws that otherwise would have constrained

his conduct, and the law that purports to authorize

him in taking such improper action, thus squarely

offend both Article I and Article II.” (Pls.’ Opp’n at 2.)

But “the Supreme Court has widely permitted the

Congress to delegate its legislative authority to the

other branches,” so long as the delegation is accom-

panied by sufficient guidance. Smith v. Fed. Reserve

Bank of N.Y., 280 F. Supp. 2d 314, 324 (S.D.N.Y.

2003) (upholding EWSAA’s waiver provision against

a nondelegation challenge) (citing Loving v. United

States, 517 U.S. 748, 771 (1996) (“Though in 1935 we

struck down two delegations for lack of an intelligi-

ble principle, A.L.A. Schechter Poultry Corp. v.

United States, 295 U.S. 495 (1935), and Panama Re-

fining Co. v. Ryan, 293 U.S. 388 (1935), we have

l4a

since upheld, without exception, delegations under

standards phrased in sweeping terms.”), and Mis-

tretta, 488 U.S. at 373 (“After invalidating in 1935

two statutes as excessive delegations, we have up-

held, again without deviation, Congress’ ability to

delegate power under broad standards.” (citations

omitted))). A delegation of legislative power to the

Executive Branch is permissible under Supreme

Court precedent where Congress “lay[s}] down by leg-

islative act an intelligible principle to which the per-

son or body authorized to [exercise the delegated au-

thority] is directed to conform... .” Mistretta, 488

U.S. at 372 (quoting J.W. Hampton, Jr., & Co. v.

United States, 276 U.S. 394, 409 (1928)) (second al-

teration in original) (internal quotation marks omit-

ted).

In order to exercise the waiver authority under

the REAL ID Act, Congress has required the Secre-

tary to determine if the waiver is “necessary to en-

sure expeditious construction of the barriers and

roads under [section 102 of IITRIRA].” 8 U.S.C. § 1103

note. Furthermore, he is directed to construct fencing

only “in the vicinity of the United States border to

deter illegal crossings in areas of high illegal entry

into the United States.” Id. This legislative directive

meets the requirements of the Supreme Court’s non-

delegation cases. The “general policy” is “clearly de-

lineated” — i.e. to expeditiously “install additional

physical barriers and roads . . . to deter illegal cross-

ings in areas of high illegal entry.” Mistretta, 488

U.S. at 372-73; 8 U.S.C. § 1103 note. And, the “boun-

daries” of the delegated authority are clearly defined

by Congress’s requirement that the Secretary may

waive only those laws that he determines “necessary

to ensure expeditious construction.” Mistretta, 488

U.S. at 372-73; 8 U.S.C. § 1103 note.

15a

The Supreme Court upheld a similar standard in

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

(2001), its most recent opinion to address the non-

delegation doctrine. The Whitman Court rejected a

nondelegation challenge to a provision of the Clean

Air Act that directed the Environmental Protection

Agency to set air quality standards at a level “requi-

site to protect public health.” Jd. at 465 (citing 42

U.S.C. § 7409(b)(1)). The “scope of discretion” allowed

by such a standard, which the Court interpreted to

mean “not lower or higher than is necessary,” was

“well within the outer limits of [the Supreme Court’s]

nondelegation precedents.” Jd. at 474, 76 (noting that

the Clean Air Act’s standard was also “strikingly

similar” to the standard approved in Touby v. United

States, 500 U.S. 160, 163 (1991), which permitted the

Attorney General to designate a drug as a controlled

substance if doing so was “necessary to avoid an im-

minent hazard to the public safety.”). The Court con-

firmed that its nondelegation precedent has never

required Congress to define, for example, “how ‘nec-

essary’ was necessary enough.” Id. at 475.

Given this precedent, this Court cannot agree

that the REAL ID Act’s waiver provision constitutes

an impermissibly standardless delegation. This con-

clusion is also in accord with the only other decision

to address the question of whether the REAL ID

Act’s waiver provision is a constitutional delegation.

In that case, the district court upheld the waiver

provision, finding that “[a]pplying a standard of ‘ne-

cessity’ to Congress’ delegation of authority passes

constitutional muster.”? Sierra Club, 2005 U.S. Dist.

7 As plaintiffs point out, the Sierra Club court mistakenly be-

lieved that the REAL ID Act’s waiver provision applies only to

the construction of a specific section of fencing near San Diego.

;

l6a

LEXIS 44244 at *21 (“The Court finds Congress pro-

vided an adequate standard [within the REAL ID

Act] for the exercise of the DHS Secretary’s dele-

gated waiver authority over laws impeding the com-

pletion of the [border fence]: ‘necessity,’ i.e., when

needed ‘to ensure expeditious construction of the

barriers and roads under this section.”).

Finally, plaintiffs argue that while there are nu-

merous examples in federal laws of proyisions that

allow the Executive Branch to waive various legal

requirements in certain circumstances, “[t]he scope

of the REAL ID Act’s waiver provision ... is un-

precedented in our history.” (Pls.’ Opp’n at 3.) Plain-

tiffs rely on the fact that the REAL ID Act waiver

permits the Secretary to waive any law with respect

to the construction of the border fences and roads.

(See Pls.’ Opp’n at 22 (“The sweeping power to void

existing law given to the Secretary by section 102 dif-

fers in fundamental ways from prior legally-valid

Congressional waivers.”).) Previous statutory waiv-

ers, plaintiffs contend, have often “involved Congress

itself directly waiving particular laws, or instructing

the President or another officer to waive particular

provisions (usually provisions of the same law con-

taining the waiver) if certain circumstances occur.”

(Id. at 3.) Plaintiffs also argue that many of the

waiver provisions cited by the government permit

the Executive Branch to waive only legal require-

ments contained within the same statute. (Pls.’ Sur-

See Sierra Club, 2005 U.S. Dist. LEXIS 44244, *21. But the

court’s reasoning was not dependent on the belief that the geo-

graphic scope of the waiver authority was so limited. Rather,

the court upheld the waiver because the “necessity” standard

provided an adequate intelligible principle to circumscribe the

actions the Secretary was permitted to take. Jd. at *20-21.

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17a

reply at 3.) Indeed, a memorandum produced by the

Congressional Research Service notes that the REAL

ID Act’s waiver provision appears to be unprece-

dented in that it “contains ‘notwithstanding lan-

guage, provides a secretary of an executive agency

the authority to waive all laws such secretary deter-

mines necessary, and directs the secretary to waive

such laws.” (Pls.’ Ex. 2 at 2-3). But even if, as argued

by plaintiffs, this waiver provision is unique insofar

as the number of laws that may be waived is theo-

retically unlimited, the Secretary may only exercise

the waiver authority for the “narrow purpose” pre-

scribed by Congress: “expeditious completion” of the

border fences authorized by IIRIRA in areas of high

illegal entry. Sierra Club, 2005 U.S. Dist. LEXIS

44244, at *20. Thus, the scope of the Secretary’s dis-

cretion is expressly limited.

More importantly, despite the surface appeal of

plaintiffs’ arguments, they cannot survive careful

scrutiny, for there is no legal authority or principled

basis upon which a court may strike down an other-

wise permissible delegation simply because of its

broad scope. See Loving, 517 U.S. at 771 (“[W]Je have

since [1935] upheld, without exception, delegations

under standards phrased in sweeping terms.”) This

lack of authority is hardly surprising, since to pro-

vide a constitutionally permissible “intelligible prin-

ciple,” Congress need only “clearly delineate[] the

general policy, the public agency which is to apply it,

and the boundaries of this delegated authority.” Mis-

tretta, 488 U.S. at 372-73 (quoting Am. Power &

Light Co. v. SEC, 329 U.S. 90, 105 (1946)). Moreover,

as cautioned by this Circuit, “[o]nly the most ex-

travagant delegations of authority, those providing

no standards to constrain administrative discretion,

have been condemned by the Supreme Court as un-

18a

constitutional.” Humphrey v. Baker, 848 F.2d 211,

217 (D.C. Cir. 1988) (emphasis added); see also Ya-

kus v. United States, 321 U.S. 414, 426 (1944) (“Only

if we could say that there is an absence of standards

for the guidance of the Administrator’s action .. .

would we be justified in overriding [Congress’s]

choice of means for effecting its declared purpose...

.” (emphasis added)); Milk Indus. Found. v. Glick-

man, 949 F. Supp. 882, 890 (D.D.C. 1996) (use of the

nondelegation doctrine to overturn legislation should

only be used in the “extremist instance”) (quoting

Amalgamated Meat Cutters & Butcher Workmen of

N. Am., AFL-CIO v. Connally, 337 F. Supp. at 737,

762 (D.D.C. 1971)).

Applying these precedents, the Court concludes

-that it lacks the power to invalidate the waiver pro-

vision merely because of the unlimited number of

statutes that could potentially be encompassed by

the Secretary’s exercise of his waiver power. Rather,

under the nondelegation doctrine, the relevant in-

quiry is whether the Legislative Branch has laid

down an intelligible principle to guide the Executive

Branch, not the scope of the waiver power. Therefore,

based on controlling Supreme Court precedent, the

Court finds that the REAL ID Act’s waiver provision

is a valid delegation of authority.

This conclusion is further buttressed by the well-

established principle that was decisive in the Clinton

case, 524 U.S. at 445 — “[w]hen the area to which

the legislation pertains is one where the Executive

Branch already has significant independent constitu-

tional authority, delegations may be broader than in

other contexts.” Sierra Club, 2005 U.S. Dist. LEXIS

44244 at *17 (citing Loving, 517 U.S. at 772). The

construction of the border fence pertains to both for-

eign affairs and immigration control — areas over

19a

which the Executive Branch traditionally exercises

independent constitutional authority. Thus, with re-

spect to border control measures such as those at is-

sue here, the Executive has “a degree of discretion

and freedom from statutory restriction which would

not be admissible were domestic affairs alone in-

volved.” Clinton, 524 U.S. at 445 (quoting Curtiss-

Wright Export Corp., 299 U.S. at 320) (internal quo-

tation marks omitted). When Congress legislates re-

garding foreign affairs or immigration control, “it is

not dealing alone with a legislative power. It is im-

plementing an inherent executive power.” Knauff v.

Shaughnessy, 338 U.S. 537, 542 (1950). Because

these powers are “also inherent in the executive de-

partment of the sovereign, Congress may in broad

terms authorize the executive to exercise [them]... .”

Id. at 543.

In sum, given the Supreme Court’s ready accep-

tance of the “necessity” standard as an adequate “in-

telligible principle” to guide a delegation of legisla-

tive authority to the Executive Branch, as well as the

Executive's independent constitutional authority in

the areas of foreign affairs and immigration control,

the Court is constrained to reject plaintiffs’ claim

that the waiver provision of the REAL ID Act is an

unconstitutional delegation.

20a

CONCLUSION

Because the Court holds that the Secretary’s

waiver is constitutional, and because it has no juris-

diction to decide plaintiffs’ statutory claims, defen-

dants’ renewed motion to dismiss {[Dkt. # 17] is

GRANTED, and the case is dismissed with preju-

dice. A separate order accompanies this Memoran-

dum Opinion.

Is/

ELLEN SEGAL HUVELLE

United States District Judge

Date: December 18, 2007

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.