Amicus Curiae Brief — Defenders of Wildlife v. Chertoff (No. 07-1180)
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: No. 07-1180 APR 17 2008
ee. FILED
OFFICE OF THE CLE
INTHE SUPREME COURT Us
Supreme Court of the Anited States
DEFENDERS OF WILDLIFE AND SIERRA CLUB, »
Petitioners,
Vv.
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
BRIEF OF AMICI CURIAE
WILLIAM D. ARAIZA AND OTHER
CONSTITUTIONAL AND ADMINISTRATIVE
LAW PROFESSORS LISTED HEREIN
IN SUPPORT OF PETITIONERS
KENNETH J. PFAEHLER MICHAEL H. BARR
SHEJAL V. DESAI Counsel of Record
Of Counsel SONNENSCHEIN NATH &
SONNENSCHEIN NATH & ROSENTHAL LLP
ROSENTHAL LLP 1221 Avenue of the Americas
1301 K Street, N.W. New York, New York 10020
Suite 600, East Tower (212) 768-6788
Washington, D.C. 20005
(202) 408-6468
Counsel for Amici Curiae William D. Araiza
and Other Constitutional and Administrative Law Professors
BE. ARLE PL AL ONE OE EEE EL IPM LP ONE BOOB LLG LEED NE LENORE RIE NE LT MSILEOE. ELE ALN AES LETT LEONE EI
WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002
TABLE OF CONTENTS
TABLE OF AUTHORITIES. ...............cesscscsssssores
NIPRINT inciss esis saninsianeassdnsinsnenceastonseunins
ss
I.
oe i!
SECTION 102(c) OF IIRIRA PRESENTS
A UNIQUELY BROAD DELEGATION
WITHOUT JUDICIAL REVIEW ...............
A WRIT OF CERTIORARI SHOULD
ISSUE TO CONSIDER WHETHER
EXCEPTIONALLY BROAD DELEGA-
TIONS TO UNELECTED MEMBERS
OF THE EXECUTIVE BRANCH
REQUIRE THE AVAILABILITY OF
SUDIICTAL RIV EW es vcsiscandasccscicsaivscacacdes.
SECTION 102(c) RAISES PROFOUND
QUESTIONS CONCERNING’ THE
POWER OF CONGRESS TO DELE-
GATE ITS POWER TO NULLIFY A
NN
APPENDIX A—List Of Armacd ....:..ccccccccssecceccccesees
APPENDIX B—Congressional Research Serv-
ice Memorandum, Section 102 of H.R. 418,
Waiver of Laws Necessary for Improvement
of Barriers at Borders, Feb. 9, 2008 ................
(i)
12
19
23
la
4a
il
TABLE OF AUTHORITIES
CASES Page(s)
A.L.A. Schechter Poultry Corp. v. United
States,
BE Ee, I AO iescindsyscsssacesesccesantonscets 17
Abbott Laboratories v. Gardner,
GENE AEs BAND CROC Dscicuisssiersassnorssarescnsessiass 14, 15
Amalgamated Meat Cutters v. Connally,
337 F. Supp. 737 (D.D.C. 1971)................ 14
Black v. Community Nutrition Institute,
re NE I icksiiadesss de casdsasaccennndhatece 15
Bowen v. Michigan Academy of Family
Physicians, 476 U.S. 667 (1986),
superseded by statute, Omnibus Budget
Reconciliation Act of 1986, 42 U.S.C.
oo cc snctainbevacodsnseadbatnnn 14, 15
Clinton v. City of New York,
DR el EE Fe Dich cases cnvccdiaccscisioarccdscave passim
Department of Interior v. South Dakota,
I Ae Oe Oo vicccc cone cccascccsaccacnccooases 18
Dunlop v. Bachowski,
Re ee SI CO Pickin ccccssnewonsievissacanosndshes 15
Ethyl Corp. v. Environmental Protection -
Agency, 541 F.2d 1 (D.C. Cir. 1976),
cert. denied,
WE RF PEE FO) cesisesnvsscsccnsessaccenscdunsanes . 6
Heckler v. Chaney,
SEP Es PE SO icesncscnesececnsnsonssnansskionsan 18
iii
TABLE OF AUTHORITIES
Page(s)
INS v. Chadha,
BEAT FFI CG ieee nsec svsscccssescascnssicnns passim
McGautha v. California,
402 U.S. 183 (1971), vacated on other
grounds sub nom. Crampton v. Ohio,
voi dh cet besdaste lad gs £5 STO STE 8
Mistretta v. United States,
A Fs SE RU i aiciasccasesicoceccstnsssesesvene 3, 13
Panama Canal Co. v. Grace Line, Inc., .
SO AF Be CO ic ccsicnesincccdccccsccovererseses 18
Panama Refining Co. v. Ryan, ©
BS UE Bh, Bt IO oo vnvcscecncecccscicececessevscvvese 18
Robertson v. Seattle Audubon Society,
BND 0 Fo, Gee CL siccsssssccccsncecarseinscases 19, 20, 22
Shalala v. Illinois Council on Long Term
Care, Inc.,
GE Re Be EE i siicttessisspsnscccsccssscenscineannss 15
Skinner v. Mid-America Pipeline Co.,
We Oa rs in cones oe ncnsescccctnccnennse 3, 13,18
Touby v. United States,
SOO U5. BGO CAFE Dc 0a... n.ccecssccevesesesencense passim
United States v. Bozarouv, -
974 F.2d 1087 (9th Cir. 1992),
cert. denied, 507 U.S. 917 (1983).............. 19
United States v. Hammoud, 381 F.3d 316
(4th Cir. 2004) (en banc), vacated on
other grounds, 543 U.S. 1097 (2005)........ 18
United States v. Nourse,
Oak. GO ha Tet. DE CE iccscnccincci ncn cess 14
ee
TABLE OF AUTHORITIES
Page(s)
Whitman v. American Trucking Ass’ns,
I ee i ivcoscninscasasccsscsccssccossocnan 13
Yakus v. United States, -
GR Rr PO accicicnicecsecsendnacnocesnenenane passim
Youngstown Sheet & Tube Co. v. Sawyer,
DE ies FT ROI iiccdccsniaccossatoideseseass 13, 16, 18
CONSTITUTION, STATUTES, RULES
AND REGULATIONS
We Foo dissiicnsccccunisdsacsaneass - 19
Administrative Procedure Act,
Te i cia atti ekintensaccsbinnenassnneaeas 4,8
American Indian Religious Freedom
Act of 1978,
Pub. L. No. 95-341, 92 Stat. 469 .............. 10
Arizona Desert Wilderness Act of 1990,
Pub. L. No. 101-628, 104 Stat. 4469......... 10
Bald and Golden Eagle Act,
Fe arts iiibis bins dncisessveniessinsanas 10
Coastal Zone Management Act of 1972,
Pub. L. No. 92-582, 86 Stat. 1280 ............ 10
California Desert Protection Act,
Pub. L. No. 103-433,
FOE TICE, AT MB once wcccccccsscsscccccscescecee 10
Fish and Wildlife Act of 1956,
Aug. 8, 1956, ch. 1036, 70 Stat. 1119....... 10
Vv
TABLE OF AUTHORITIES
Page(s)
Illegal Immigration Reform and Immi-
grant Responsibility Act of 1996,
Pub. L. No. 104-208, Stat. 3009, 3009-
554, (codified as amended at 8 U.S.C.
Fe isi ccanaoednpttanncannens 2-3
i ncikcsenacadannanasdscccenene passim
Ee en ese 3, 5,6
eS 6) trae 4,12
Scenes FOE ANC) .............5...ccccccecccoase 4
Multiple Use and Sustained Yield Act
of 1960, |
Pub. L. No. 86-517, 74 Stat. 215 .............. 10
Native American Graves Protection and
Repatriation Act of 1990,
Pub. L. No. 101-601, 104 Stat. 3048......... 10
National Forest Management Act of 1976,
Pub. L. No. 94-588, 90 Stat. 2949 ............ —©-10
National Park Service General Authorities
Act of 1978,
Pub. L. No. 91-383, 84 Stat. 825 .............. 10
National Park. Service Organic Act of
1916,
Aug. 25, 1916, ch. 408, 39 Stat. 535......... 10
National Parks and Recreation Act of
1978,
Pub. L. No. 95-625, 92 Stat. 3467 ............ 10
National Wildlife Refuge System Admini-
stration Act of 1966,
Pub. L. No. 89-669, 80 Stat. 927 .............. 10
ms
TABLE OF AUTHORITIES
Page(s)
National Environmental Policy Act of 1969,
ee bahia ehidhcnictanstnhaniendritssesionns 8,9
Otay Mountain Wilderness Act of 1999,
Pub. L. No. 106-145, 113 Stat. 1711......... 10
Religious Freedom Restoration Act of 1993,
Pub. L. No. 103-141, 107 Stat. 1488......... 10
Rivers and Harbors Act of 1899, Mar. 3,
1899,
BE oc sch cvcssanedectnestense 10
Wilderness Act of 1964,
Pub. L. No. 88-577, 78 Stat. 890 .............. 10
66 Fed. Reg. 59,813 (Nov. 30, 2001) ............ 9
70 Fed. Reg. 55,622 (Sept. 22, 2005)............ 8
72 Fed. Reg. 2,535 (Jan. 19, 2007)............... 9
72 Fed. Reg. 60,870 (Oct. 26, 2007) ............. 9
73 Fed. Reg. 19,077 (April 8, 2008).............. 11
73 Fed. Reg. 19,078 (April 8, 2008).............. 10
OTHER AUTHORITY
Cass R. Sunstein, Agency Inaction After
Heckler v. Chaney, 52 U. Chi. L. Rev.
i a i accsatinncetacenens 17
Daniel D. Rodriquez, The Presumption of
Reviewability: A Study In Canonical
Construction and Its Consequences, 45
Vand. L. Rev. 743 (1992) .............ccesss000000 15
Vii
TABLE OF AUTHORITIES
Page(s)
Congressional Research Service Memoran-
dum, Section 102 of H.R. 418, Waiver
of Laws Necessary for Improvement of
Barriers at Borders, Feb. 9, 2005............. 7
IN THE
Supreme Court of the Anited States
No. 07-1180
DEFENDERS OF WILDLIFE AND SIERRA CLUB,
Petitioners,
V.
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
STATEMENT
William D. Araiza and the other professors of
constitutional and administrative law listed herein
respectfully submit this amicus brief in support of
‘the petition for a writ of certiorari.’
‘INTEREST OF THE AMICI
Amici are professors who study, teach and publish
on corstitutional and administrative law. Amici
share the view that Section 102 of the Illegal
‘No counsel for a party authored this brief in whole or in part
and no counsel or party made a monetary contribution intended
to fund the preparation or submission of this brief. No person
other than counsel for amici curiae made a monetary contri-
bution to its preparation. The parties have filed letters con-
senting to the filing of this brief with the Clerk of this Court.
2
Immigration Reform and Immigrant Responsibility
Act of 1996, 8 U.S.C. § 1103 note (“ITRIRA”), raises
profound, unanswered questions concerning the elim-
ination of any judicial review (except on consti-
tutional questions) of an executive agency’s dele-
gated, wholly discretionary power to waive any
statutes, whether federal, state or local, that the
agency sees fit in order to accomplish a given goal.
Section 102(c) of IRIRA precludes judicial review
while granting unprecedented power to the Secretary
of Homeland Security to waive any laws on the books,
including laws that extend far beyond that agency’s
area of expertise and regulatory authority. This
case, in a starker fashion than any before, raises
the question of whether the “intelligible principle”
requirement for an exceptionally broad delegation of
one branch’s powers can be satisfied in the absence of
judicial review. Given that the agency at this
moment is wielding the waiver power conferred
upon it by Section 102 without constraint, this case
squarely presents the fundamental question of
whether the Constitution allows Congress to grant
unlimited, unfettered and unreviewable power to an
executive branch official to waive any law he or she
deems “necessary” to accomplish a stated goal. For
this reason, amici believe this case warrants the
Court’s review.
Amici represent a wide range of experiences,
backgrounds and philosophical perspectives. Many
amici are practitioners who have litigated consti-
tutional or administrative cases. All of the amici
have published and lectured extensively on issues of
constitutional and/or administrative law. Amici sign
this brief in their individual capacities.
A list of the amici appears as Appendix A,
reproduced at la-3a.
3
SUMMARY OF ARGUMENT
The assurance of judicial review has been at
the heart of this Court’s review of constitutional
challenges to Congressional delegations of power. In
particular, the availability of judicial review under-
lies this Court’s “intelligible principle” jurisprudence.
See, e.g., Touby v. United States, 500 U.S. 160, 168-69
(1991); Skinner v. Mid-Am. Pipeline Co., 490 U.S.
212, 216 (1989); Mistretta v. United States, 488 US.
361, 379 (1989); INS v. Chadha, 462 U.S. 919, 953
n.16 (1983); Yakus v. United States, 321 U.S. 414,
426 (1944). However, this Court has never directly
addressed the question of whether, in the case of an
exceptionally broad delegation, satisfaction of the
“intelligible principle” test requires the availability
of judicial review. Put another way, can the “long-
standing principle” that Congress may delegate
powers to the executive branch “so long as Congress
provides an administrative agency with standards
guiding its actions such that a Court could ‘ascertain
whether the will of Congress has been obeyed .. .” be
satisfied if the “court” is entirely removed from the
principle’s operation? See Skinner, 490 U.S. at 216
(emphasis added). This Court has never answered
this question, which is of critical importance to
ensuring that Congress’s delegation of authority to
executive branch agencies is done in a manner
consistent with separation of powers.
Section 102 of the ITRIRA presents this Court with
the most sweeping and starkest possible context to
address this question, because Congress could
scarcely have made a broader delegation than this
one. Section 102(c)(1) of the IIRIRA grants the
Secretary of Homeland Security, “[nlotwithstanding
any other provision of law,” the “authority to waive
4
all legal requirements such Secretary, in such
Secretary’s sole discretion, determines necessary to
ensure expeditious construction of the barriers and
roads under this section.” Pursuant to this authority,
the Secretary already has issued five waivers
nullifying 30 statutes and all rules, regulations and
legal requirements deriving from or related to the
subject matter of those statutes along much of the
border with Mexico. Among other laws, almost every
federal environmental and historic preservation stat-
ute has been waived, as have the Religious Freedom
Restoration Act and the Administrative Procedure
Act.
The Secretary has asserted that these sweeping
waivers are “necessary” but, contrary to what
normally might occur in the context of reviewable
agency action, has offered no reasons why. None of
these waivers can be reviewed by the courts except
on constitutional grounds. IIRIRA § 102(c)(2)(A).’
Neither this Court, nor any court of appeals, has ever —
been asked to review a delegation to suspend
statutory requirements that is this far reaching, nor
has any court ever upheld as broad a delegation of
legislative power to the executive branch in the
absence of judicial review.
We submit that the Court should grant the writ of
certiorari to address whether such a delegation can
be made without judicial review. In addition, this
Court may wish to take this opportunity to consider
whether there are circumstances under which
the Congressional delegation must be subjected to
greater scrutiny, such as when a delegation is
* The statute also precludes any right of appeal to the Courts
of Appeal following a determination of a constitutional question.
IIRIRA § 102(c)(2\(C).
Pa
5
especially broad or when an agency is permitted to
waive laws that are outside the scope of its expertise.
The unrestricted grant of power to an unelected
official to waive any law on the books he deems
“necessary” for his purposes, including not only sub-
stantive laws but also procedural statutes, raises
the specter of arbitrary power and the loss of liberty.
“Liberty is always at stake when one or more branches
seek to transgress the separation of powers.” Clinton
v. City of New York, 524 U.S. 417, 450 (1998)
(Kennedy, J., concurring). We respectfully submit
that a writ of certiorari should issue in this case.
ARGUMENT
I. SECTION 102(c) OF IIRIRA PRESENTS
A UNIQUELY BROAD DELEGATION
WITHOUT JUDICIAL REVIEW
Whether the non-delegation principle requires judi-
cial review for especially broad grants of policy-
making authority is a question presented here in the
context of an unprecedently sweeping delegation.
We will return shortly to the jurisprudential con-
cerns that, we suggest, compel issuance of a writ of
certiorari here. But first it is appropriate to consider
the breadth and open-ended nature of Section 102(c)’s
delegation and the Secretary's sweeping exercise of
that power to date.
Section 102(c) of the IIRIRA directs the Secretary
of Homeland Security to take such actions as may be
necessary to install physical barriers and roads
(including the removal of obstacles to the detection
of illegal immigrants) in the vicinity of the United
States border. To achieve this end, Section 102(c)(1)
provides:
(c)(1) Notwithstanding any other provision of
law, the Secretary of Homeland Security shall
6
have the authority to waive all legal re-
quirements such Secretary, in such Secretary’s
sole discretion, determines necessary to ensure
expeditious construction of the barriers and ©
roads under this section. Any such decision by
the Secretary shall be effective upon being
published in the Federal Register.
ITRIRA § 102(c)(1).
This delegation of authority to an executive agency
to waive any law or legal requirement, whether
federal, state or local, is unprecedented. Certainly a
number of federal laws have authorized an agency
official to waive legal requirements in particular
circumstances. But such delegations have typicaily
involved directions to the executive to waive par-
ticular provisions of laws. Moreover, such directions
usually instruct or authorize the executive to waive
only provisions of the same law containing the waiver
authority itself, and such waivers usually are subject
to judicial review.
Here the delegation, while limited as to purpose,
is unlimited as to application. The Secretary of
Homeland Security,. upon a mere pronouncement
that he finds waiver “necessary,” can waive any law
promulgated by any authority in effect anywhere in
the nation. As far as we can determine Congress
-has*never delegated to a federal agency anything
approaching such an omnibus waiver authority. As
an independent study by the Congressional Research ~
Service concluded: )
After a review of federal law .. . we were unable
to locate a waiver provision identical to that of
§ 102 of H.R. 418—i.e., a provision that contains |
‘notwithstanding language,’ provides a secretary
7
of an executive agency the authority to waive all
laws such secretary determines necessary, and
_ directs the secretary to waive such laws. Much
more common, it appears, are waiver provisions
that (1) exempt an action from other require-
ments contained in the Act and authorizes the
action, (2) specifically delineate the laws to be
waived, or (3) waive a grouping of similar laws.
Congressional Research Service Memorandum, Sec-
tion 102 of H.R. 418, Waiver of Laws Necessary for
Improvement of Barriers at Borders, Feb. 9, 2005, at
7a-8a, reproduced at Appendix B.
Moreover, prior delegations to an executive agency
of the power to waive laws usually, if not always,
have involved the waiver of laws within the purview
of that agency’s expertise and specialized knowledge.
The broad delegations this Court has reviewed in the
past differ from “the delegation at issue here in
that agencies often develop subsidiary rules under
the statute.” Clinton, 524 U.S. at 489 (Breyer, J.,
dissenting). “Doing so diminishes the risk that the
agency will use the breadth of a grant of authority as
a cloak for unreasonable or unfair implementation.”
Id. (citing 1 K. Davis, Administrative Law § 3:15, pp. -
207-208 (2d ed. 1978)).
Such delegations of power permit the legislature
to declare the end sought and leave technical
matters in the hands of experts, or to leave to
others the task of devising specific rules to carry
out congressional! policy in a variety of factual
situations. Where, as is often the case, even
major policy decisions may turn on specialized
knowledge and expertise beyond legislative
ken, delegation of rulemaking power may be
made under broad standards to a body chosen
8
for familiarity with the subject matter to be
regulated.
McGautha v. California, 402 U.S. 183, 276 (1971)
(Brennan, J., dissenting), vacated on other grounds
sub nom. Crampton v. Ohio, 408 U.S. 941 (1972).
Section 102(c) of ITRIRA, by contrast, gives the
Secretary of Homeland Security the authority to
waive rules and regulations in every area of the law,
far outside his department’s specialized knowledge
and expertise, and regardless of what those with
specialized knowledge and expertise have concluded
is necessary and appropriate when developing the
rules and regulations waived. This delegation is
uniquely suspect in that it allows the Secretary
to selectively and without reason waive not only
substantive but procedural statutes, such as the
Administrative*Procedure Act, 5 U.S.C. § 551 et seq.
(the “APA”).
The Secretary’s exercise of the Section 102(c)
waiver delegation has been as unfettered in practice
as it is unlimited in authorization. On September 22,
2005, the Secretary invoked his authority under
ITRIRA § 102(c) to waive “in their entirety,” along a
14 mile stretch of the U.S. border with Mexico near
San Diego, “all federal, state, or other laws, regula-
tions and legal requirements of, deriving from, or
related to the subject of’ the National Environmental
Policy Act of 1969, 42 U.S.C. § 4321 et seg. (“NEPA”),
the entirety of the APA, and six other environmental
and historic preservation statutes. 70 Fed. Reg.
55,622 (Sept. 22, 2005). On January 19, 2007, the
Secretary invoked his Section 102(c) authority to
waive in Arizona’s Barry M. Goldwater Range “all
federal, state or other laws, regulations and legal
requirements of, deriving from or related to the
9
subject of’ NEPA, the APA and eight other statutes.
72 Fed. Reg. 2,535 (January 19, 2007).°
On October 26, 2007, two weeks after the issuance
of a temporary restraining order by the district court
below (following a finding that the petitioners had
demonstrated a substantial likelihood of success on
the merits that the Secretary had violated NEPA
and the Arizona-Idaho Conservation Act of 1988), the
Secretary invoked his authority under Section 102(c)
of IIRIRA to waive in the San Pedro Riparian
National Conservation Area (the “SPRNCA”) “all
federal, state, or other laws, regulations and legal
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). This is the waiver specifically addressed in
the petition for a writ of certiorari.
On April 1, 2008, the Secretary issued a sweeping
waiver covering 470 miles of the border from Cali-
fornia to Texas. Again invoking his authority under
Section 102(c) of the ITRIRA, the Secretary waived
“all federal, state, or other laws, regulations and legal
requirements of, deriving from, or related to the
subject of 30 laws, again including NEPA, the
* The Barry M. Goldwater Range is described in the Bureau of
Land Management’s “Legal Description of Barry M. Goldwater
Range Withdrawal, AZ.” 66 Fed. Reg. 59,813 (Nov. 30, 2001).
* The other laws identified by name in the October 26, 2007
waiver are listed in the Petition. See Defenders of Wildlife, Pet.
App. 7, n.3.
10
Arizona-Idaho Conservation Act and the entirety of
the APA.” Secretary Chertoff asserted that the
waiver of these laws, in their entirety and across
much of this nation’s Mexican border, is “necessary
. . to ensure the expeditious construction of the
barriers and roads.” The Secretary provided no
explanation of why he found it “necessary” to waive
all provisions of 30 statutes including, for instance,
the Religious Freedom Restoration Act (42 U.S.C.
§ 2000bb) prohibiting the federal government from
substantially burdening a person’s exercise of
religion. 73 Fed. Reg. 19,078 (April 8, 2008).
Also on April 1, 2008, the Secretary issued a waiver
covering a 22 mile stretch in Hidalgo County, Texas.
The Hidalgo County waiver is identical in scope to
° This waiver was corrected on April 8, 2008 to include
geographical information on the project areas. In addition to
the specific laws waived in the Secretary's October 26, 2007
pronouncement, on April 1 the Secretary specifically waived the
following laws: the Coastal Zone Management Act (16 U.S.C.
§ 1451 et seq.); the Wilderness Act (16 U.S.C. § 1131 et seq.); the
National Wildlife Refuge System Administration Act (16 U.S.C.
§§ 668dd-668ee); the.Fish and Wildlife Act of 1956 (16 U.S.C.
§ 742a et seq.); the Otay Mountain Wilderness Act of 1999 (Pub.
L. 106-145); Sections 102(29) and 103 of Title I of the California
Desert Protection Act (Pub. L. 103-433); 50 Stat. 1827, the
National Park Service Organic Act (16 U.S.C. $§ 1, 2-4); the
National Park Service General Authorities Act (16 U.S.C. §$§ 1a-
1 et seqg.); Sections 401(7), 403 and 404 of the National Parks
and Recreation Act of 1978 (Pub. L. 95-625); Sections 301(a)-(f
of the Arizona Desert Wilderness Act (Pub. L. 101-628); the
Rivers and Harbors Act of 1899 (33 U.S.C. § 403); the Eagle
Protection Act (16 U.S.C. § 668 et seg.); the Native American
Graves Protection and Repatriation Act (25 U.S.C. § 3001
et seq.); the American Indian Religious Freedom Act (42 U.S.C.
1996); the Religious Freedom Restoration Act (42 U.S.C.
§ 2000bb); the National Forest Management Act of 1976 (16
U.S.C. § 1600 e¢ seg.); and the Multiple Use and Sustained Yield
Act of 1960 (16 U.S.C. §§ 528-531).
11
the Secretary's other April 1, 2008 waiver. 73 Fed.
Reg. 19,077 (April 8, 2008).°
To date, the Secretary has seen fit to waive laws
protecting the environment, public health, freedom of
religious exercise and historic resources. But with no
more than the unsupported assertion of “necessity”
that he has invoked to waive those laws, the
Secretary also may waive any other law he desires.
He is equally free to waive the requirements of the
Fair Labor Relations Act to halt a strike, or the
provisions of the Occupational Safety and Health Act
to force workers to endure unsafe working conditions,
or the state speed limits in California, New Mexico,
Arizona and Texas to race equipment and materials
to construction sites. Section 102(c) gives the Sec-
retary the power to waive treaties with Mexico
governing the location of the border, management of
the border zone, and movement. of water, goods and
services across the border so long as he deems it, in
his sole and unreviewable discretion, “necessary.”
Indeed, under Section 102(c) the Secretary could
waive the immigration laws and regulations, hire
illegal aliens, and pay them less than minimum wage
if he deems it necessary to build the fence.
It also bears noting that the Secretary has
specifically waived all state and local laws relating to
tne subjects of the 30 federal laws named in his
waivers. This includes all state and local laws
dealing with the environment, water and riparian
rights, historic preservation, Native American reli-
gious freedom and practices, and other topics. The
constitutional basis for this sweeping, unlegislated
* This waiver, too, was corrected on April 8 to describe the
project area.
12
preemption of the laws of four states raises an
additional set of pressing constitutional questions.
We recite these facts to demonstrate the sweeping
scope of the waivers already in place. As individuals
who study, teach and publish on constitutional and
administrative law, amici have differing views of the
constitutional jurisprudence establishing the outer
limits of permissible delegation of powers and sepa-
ration of powers. We are, however, unanimous in
our view that, whatever those limits may be, the
sweeping delegation to the Homeland Security
Secretary in Section 102(c) of the ITRIRA, when
coupled with the preclusion of judicial review, raises
significant questions that this Court should address
about whether there has been an unconstitutional
delegation of power and, more generally, whether the
separation of powers doctrine has been violated.
Ii. A WRIT OF CERTIORARI SHOULD
ISSUE TO CONSIDER WHETHER EX-
CEPTIONALLY BROAD DELEGATIONS
TO UNELECTED MEMBERS OF THE
EXECUTIVE BRANCH REQUIRE THE
AVAILABILITY OF JUDICIAL REVIEW
Section 102(c) of the IIRIRA forbids judicial
challenges to Secretary Chertoffs waiver determi-
nations. After vesting exclusive jurisdiction in the
district courts, section 102(cX2)\A) of the statute
sharply limits that jurisdiction:
A cause of action or claim may only be brought
alleging a violation of the Constitution of the
United States. The court shall not have juris-
diction to hear any claim not specified in this
subparagraph.
13
The Court has consistently highlighted the avail-
ability of judicial review of administrative action as
an essential predicate to upholding broad delegations
of congressional power under the “intelligible prin-
ciple” requirement. See, e.g., Towby v. United States,
500 U.S. 160, 168-69 (1991); Skinner v. Mid-Am.
Pipeline Co., 490 U.S. 212, 216 (1989); Mistretta v.
United States, 488 U.S. 361, 379 (1989): INS uv.
Chadha, 462 U.S. 919, 953 n.16 (1983); Yakus
v. United States, 321 U.S. 414, 436 (1944). The
IIRIRA’s prohibition of judicial review presents a
critical question warranting a grant of certiorari.
It is a longstanding principle of this Court that
Congress can delegate powers to the executive branch
“so long as Congress provides an administrative
agency with standards 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) (quoting Yakus v. United
States, 321 U.S. 414, 426 (1944)); see also Mistretta v.
United States, 488 U.S. 361, 379 (1989) (same). The
availability of judicial review ensures executive com-
pliance with congressional will, and thereby ensures
that the executive branch is limited to enforcing the
law, rather than making it. INS v. Chadha, 462 U.S.
919, 953 n.16 (1983); Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 585 (1952). For instance, the
bread rulemaking delegation approved of by this
Court in Whitman v. American Trucking Ass’ns, 531
U.S. 457 (2001), was subject to judicial review under
the APA. 531 U.S. at 475-76. “Judicia! review per-
fects a delegated-lawmaking scheme by assuring that
the exercise of such power remains within statutory
bounds.” Touby v. United States, 500 U.S. 160, 170
(1991) (Marshall, J., concurring) (citing Skinner, 490
U.S. at 218-219).
14
In the modern era of broad delegations to ad-
ministrative agencies, judicial review assures the
continuing validity of Chief Justice Marshall’s
observation:
It would excite some surprise if, in a government
of laws and of principle, furnished with a
department whose appropriate duty is to decide
‘questions of right, not only between individuals,
but between the.government.and individuals; a —
ministerial officer might, at his discretion, issue
this powerful process .. . leaving to [the
claimant] no remedy, no appeal to the laws of his
country, if he should believe the claim to be
unjust. But this anomaly does not exist; this
imputation cannot be cast on the legislature of
the United States.
United States v. Nourse, 9 Pet. 8, 28-29, 9 L. Ed. 31
(1835). Therefore, our “constitutional structure con-
templates judicial review as a check on adminis-
trative action that is in disregard of legislative
mandates. ...” Shalala v. Illinois Council on Long
Term Care, Inc., 529 U.S. 1, 44 (1999) (Thomas, J.,
dissenting). This insight underlies the well-estab-
lished. presumption of the reviewability of agency
action. Abbott Laboratories, 387 U.S. 136, 140
(1967). “Concepts of control and accountability define
the constitutional requirement.” Amalgamated Meat
Cutters v. Connally, 337 F. Supp. 737, 746 (D.D.C.
1971) (three judge panel) (Leventhal, J.).’
" When Congress intends to preclude judicial review, the
Court has required Congress to do so with “specific language or
specific legislative history that is a reliable indicator of congres-
sional intent.” Bowen v. Michigan Academy of Family Physi-
cians, 476 U.S. 667, 673 (1986) (citing Black v. Community
15
Broad congressional delegations of power to the
executive likewise pass constitutional scrutiny in
significant part because they provide for judicial
review of their implementation.” In Chadha the
‘Court, distinguishing lawmaking (which requires
adherence to bicameralism and presentment) from
administrative action (which does not), relied on the
limitations constraining administrative action, limi-
tations that assumed the existence of judicial review:
The bicameral process is not necessary as a
check on the Executive’s administration of the
laws because his administrative activity cannot
reach beyond the limits of the statute that
Nutrition Institute, 467 U.S. 340, 349, 351 (1984)), superseded
by statute, Omnibus Budget Reconciliation Act of 1986, 42
U.S.C. § 1395ff (1992). “Clear and convincing evidence” is re-
quired to overcome the “strong presumption that Congress did
not mean to prohibit all judicial review of executive action.”
Bowen, 476 U.S. at 671-72 (citing and quoting Abbott Laborato-
ries v. Gardner, 387 U.S. 136, 141 (1967) and Dunlop uv.
Bachowski, 421 U.S. 560, 567 (1975)).
* One scholar has connected judicial review of agency action
and non-delegation as follows: “Framed as a sort of pre-
sumption, the notion was that [judicial] review was necessary to
. assuage concerns. over the constitutionality of the New Deal
regulatory statutes. Review was part of a constitutional quid
pro quo: courts would decline to employ the nondelegation
doctrine to overturn statutes and, in return, courts would
preserve the power to review agency decisions.” Daniel D.
Rodriquez, The Presumption of Reviewability: A Study In
Canonical Construction and Its Consequences, 45 Vand. L. Rev.
743, 755 (1992). Of course this statement does not contemplate
the situation present in this case, where a constitutionally
troubling delegation comes unaccompanied by judicial review.
Cf. Touby v. United States, 500 U.S. 160 (1991) (rejecting an
argument that a statute constituted an unconstitutional
- delegation due to its lack of judicial review, not by concluding
that judicial review was unnecessary, but rather by finding an
adequate provision of judicial review).
16
created it—a statute duly enacted pursuant to
Art. I [§§] 1, 7. The constitutionality of the
Attorney General’s execution of the authority
delegated to him by [the Immigration and
Nationality Act] involves only a question of
delegation doctrine. The courts, when a case
or controversy arises, can always “ascertain
whether the will of Congress has been obeyed,”
Yakus v. United States, 321 U.S. 414, 425, 64
S.Ct. 660, 668, 88 L.Ed. 834 (1944), and can
enforce adherence to statutory standards. See
Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 585, 72 S.Ct. 863, 865-866, 96 L.Ed.
1153 (1952); Ethyl Corp. v. EPA, 541 F.2d 1,
68 (CADC) (en banc) (separate statement of
Leventhal, J.), cert. denied, 426 U.S. 941, 96
S.Ct. 2662, 49 L.Ed.2d 394 (1976); L. Jaffe,
Judicial Control of Administrative Action 320
(1965). It is clear, therefore, that the Attorney
General acts in his presumptively Art. I] capacity
when he administers the Immigration and Nation-
ality Act.
Chadha, 462 U.S 919, 953 n.16 (1983) (emphasis
added). “Congress has been willing to delegate its
legislative powers broadly—and the courts have
upheld such delegation—because there is court re-
view to assure that the agency exercises the dele-
gated power within statutory limits.” Ethyl Corp. v.
Environmental Protection Agency, 541 F.2d 1, 68
(D.C. Cir. 1976) (en banc) (Leventhal, J., concurring)
(footnote omitted), cert. denied, 426 U.S. 941 (1976).
An excessively broad waiver provision that does not
require the Secretary to provide reasons, and whose
invocation is not subject to judicial review, obfuscates
any assessment of what the congressional will is,
or whether it is being followed. Indeed, selective
17
waiver actions by the Secretary may allow the agency
to make law in a way that bypasses Article I
procedures.
Beyond ensuring basic fidelity to statutory com-
mands that have complied with Article I, judicial
review of agency action also helps guard against
arbitrary use of discretion in implementing statutes.
See Clinton v. City of New York, 524 U.S. 417, 489
(1998), (Breyer, J., dissenting). When Congress gives
a broad grant of authority that could support
a range of different agency decisions, and such leg-
islative directive thus necessarily cannot provide
fully sufficient guidelines, judicial review ~ protects
“the coherence and integrity of the legislative proc-
ess.” Cass R. Sunstein, Reviewing Agency Inaction
After Heckler v. Chaney, 52 U. Chi. L. Rev. 653, 656
(1985). Indeed, even the mere availability of judicial
review plays this salutary role, as “the prospect of
review increases the likelihood of fidelity to substan-
tive and procedural norms.” Jd. Judicial review of
discretionary agency action is especially important
given agencies’ lack of direct electoral accountability.
Cf. Clinton, 524 U.S. at 490 (Breyer, J., dissenting)
(distinguishing on this basis between the importance
of judicial review of presidential discretion and
review of agency discretion).
By contrast, the absence of judicial review has been
a significant consideration on the occasions when this
Court has found that statutes constitute unconsti-
tutional delegations. A.L.A. Schechter Poultry Corp.
v. United States, 295 U.S. 495, 533 (1935); Panama
Refining Co. v. Ryan, 293 U.S. 388, 432 (1935).
Indeed, delegations without judicial review have only
been upheld when they have not raised serious
separation of powers issues. See, e.g., Heckler v.
18
Chaney, 470 U.S. 821 (1985) (authority to the Food
and Drug Administration to bring enforcement ac-
tions under the Food, UVrug and Cosmetic Act);
Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309
(1958) (authority to Panama Canal Company to set
Panama Canal tolls at a rate that covers costs of
operating the canal). In cases raising non-delegation
concerns the Court has taken pains to note both the
existence of judicial review and, indeed, the adequacy
of the particular judicial review provisions. See, e.g.,
Touby, 500 U.S. at 168-169.
The petition for certiorari raises important ques-
tions, so far unanswered by the Court, about the
necessity of judicial review to the. constitutionality of
exceptionally broad delegations of congressional
power. Certainly, as described above, prior authority
from this Court suggests the importance of judicial
review as a predicate to the resolution of non-
delegation claims. See, e.g., Touwby, 500 U.S. at 168-
79 & 170 (Marshall, J., concurring); Skinner, 490
U.S. at 218-19; Chadha, 462 U.S. at 953 n. 16;
Youngstown Sheet & Tube, 343 U.S. at 585; Yakus,
321 US. at 425. In Department of Interior v. South
Dakota, 519 U.S. 919 (1996), this Court vacated and
remanded without need for argument a judgment
of the Eighth Circuit, after the Solicitor General
had effectively conceded that the agency’s action was
judicially reviewable. However, the dissenting opin-
ion appears to raise doubts about the necessity of
judicial review to a valid delegation of legislative
power. 519 U.S. at 921-22 (Scalia, J., dissenting). .
The uncertainty on this fundamental issue has been
noted by the lower courts. See, e.g., United States v.
Hammoud, 381 F.3d 316, 331 (4th Cir. 2004) (en
banc) (“it is not clear whether the nondelegation
doctrine requires any form of judicial review”),
19
vacated on other grounds, 543 U.S. 1097 (2005). This
uncertainty also has led to inconsistent results. See,
CoB y UIE LULLED UU. LIULUI UU, VIE A eA AU sy 4 #4
(9th Cir. 1992) (reversing district court’s decision thaz ve
the Export Administration Act violated the non-dele-
gation doctrine because of the lack of a provision for _
judicial review), cert. denied, 507 U.S. 917 (1993).
This case presents the question in the starkest
possible way. Section 102(c) of the ITRIRA presents
the Court with a nearly unprecedented delegation of
authority to waive any “legal requirement(]” in the ©
nation. That authority is unchecked by any judicial
review of whether the administrative agency is
making those waivers in complian¢e with congres-
sional will and in a reasoned fashion. The Secretary
has employed this discretion aggressively and
without real explanation. The characteristics of the
challenged statute and its implementation make it an
ideal vehicle to resolve the question of whether the
grant of such broad waiver power to an unelected
official, without judicial review of his use of that
power, is constitutional.
Ill. SECTION 102(c) RAISES PROFOUND
QUESTIONS CONCERNING THE POWER
OF CONGRESS TO DELEGATE ITS
POWER TO NULLIFY A LAW
In addition to the unprecedented breadth of the
power granted to the Homeland Security Secretary,
Section 102(c) endows him with a core Article I
power. U.S. Const. art. I, § 1. The waiver or limi-
tation of a statute is a quintessentially legislative
function. See Robertson v. Seattle Audubon Soc’y, 503
U.S. 429, 437-441 (1992). The challenged legislative
action in Seattle Audubon Society, “deeming” certain
20
statutory provisions to be satisfied if federal agencies
took certain specified actions in connection with
active litigation, partially suspended provisions of
five statutes o1 which lawsuits had been brought.
503 U.S. at 434-36. The Court viewed the temporary
modification of these environmental laws as leg-
islative action within Congress’s power. Id. at 437-
41. The Court rejected contentions that the statute’s
unusual nature and, indeed, omnibus character
(determining compliance with a number of statutes)
meant that Congress had encroached on the powers
of the judiciary. Jd. Instead the Court looked beyond
the unusual form of the law and the references
to judicial action to the core reality that Congress
was only modifying or temporarily superseding its
own enactments. Jd. (“We conclude that Subsection
(b)(6)(A) compelled changes in law, not findings or
results under old law”).
Like the statute in Seattle Audubon Society,
Section 102(c) authorizes the supersessien, perhaps
temporary, of statutes in a part of a country. “Not-
withstanding any other provision of law, the Sec-
retary of Homeland Security shall have the authority
to waive all legal requirements such Secretary,
in such Secretary’ sole discretion, determines
necessary ....” IIRIRA § 102(c)(1).. Unlike the
statute in Seattle Audubon Society, however, Section
102(c)’s power to temporarily nullify is to be exercised
not by Congress, but by an unelected executive
branch official. And unlike the statute in Seattle
Audubon Society, this delegation of a uniquely Con-
gressional power is made without limits as what
statutes may be nullified, or even for how long.
On prior occasions Congress has granted authority
to an agency to waive a legal provision upon the
21
happening of specified events, or upon the making of
specified determinations. Section 102(c), however, is
unprecedented in the breadth of its waiver. As the
Congressional Research Service noted, Section 102(c)
is not analogous to statutes that impose a rule of
conduct but then authorize the agency to waive that
rule under certain circumstances. Instead, Section
102(c)’s waiver authority is freewheeling, extending
to any “legal requirement” in force. The breadth
of Section 102(c)’s authority has already been re-
marked upon. But additionally troubling is that the
Homeland Security Secretary’s waiver authority is
not linked to the original grant of power—i.e., the
original rules of conduct his agency is empowered to
implement.
-This decoupling raises the question of whether
Section 102(c) is functionally indistinguishable from
the omnibus nullifying authority that the Court
struck down in Clinton v. City of New York, 524 U.S.
417 (1998). The Clinton Court was rightly concerned
that what emerged from the President’s exercise of
his powers under the Line Item Veto Act—“truncated
versions of two bills that passed both Houses of
Congress”—were “not the product of the ‘finely
wrought’ procedures that the Framers designed.” 524
U.S. at 440. So too the waivers resulting from the
Secretary's exercise of his Section 102(c) powers
permit the executive to modify statutes in disregard
of the “single, finely wrought and exhaustively con-
sidered, procedure” set forth in the Constitution to
enact or modify statutes. Chadha, 462 U.S. at 951. —
That single constitutional procedure does not con-
template an unelected official in the executive branch
performing the functional equivalent of partially
repealing statutes. The repeal, even partial, of a
legislative enactment is itself a uniquely legislative
_
22
act. Chadha, 462 U.S. at 954 (repeal of statutes, no
less than enactment, must conform with Art. I).
It is, of course, no answer to contend that the
Secretarys repeal power is only partial. For the
geographic areas, the circumstances and the time
frames decided upon by the Secretary, the target
laws are a nullity. Just as it constituted a legislative
act for Congress in Seattle Audubon Society to have
deemed a variety of laws, as they applied to the
Pacific Northwest forests, satisfied by the per-
formance of certain specified actions, so too is it a_
legislative act to deem environmental, historical
preservation, religious freedom and procedural laws
without force in the “vicinity” of areas where border
fences might be constructed.
At a minimum, Section 102(c) raises the question of
whether the legislative perquisite of repealing and
modifying statutory law can be delegated to an
unelected executive branch official. The Secretary’s
actions to date pursuant to Section 102(c) directly
frame this question for the Court. This case presents
the Court with the opportunity to delineate whether
such a delegation can ever be Constitutional and, if
so, to demarcate the outer bounds of any such
delegation.
* +* *
“[Lliberty demands limits on the ability of any one
branch to influence basic political decisions.” Clinton
v. City of New York, 524 U.S. 417, 450-51 (1998)
(Kennedy, J., concurring). Quoting Montesquieu, the
Federalist made the point as follows:
“When the legislative and executive powers are
united in the same person or body,’ says he,
‘there can be no liberty, because apprehensions
may arise lest the same monarch or senate
23
should enact tyrannical laws to execute them in a
tyrannical manner.’ Again: ‘Were the power of
judging joined with the legislative, the life and
liberty of the subject would be exposed to
arbitrary control, for the judge would then be the
legislator. Were it joined to the executive power,
the judge might behave with all the violence of
an oppressor.”
524 U.S. at 451 (quoting The Federalist No. 47, at
303 (James Madison) (Clinton Rossiter ed., 1961))
(emphasis in original).
A writ of certiorari should issue to determine
whether Congress’s standardless grant to the Home-
land Security Secretary to make sweeping and
unreviewable waivers of federal, state and local laws
so raises the specter of arbitrary control and power
that it violates the principles of separation of powers
by unconstitutionally delegating legislative power to
the Secretary of Homeland Security.
CONCLUSION
For these reasons, the Court should grant the
petition for writ of certiorari.
Respectfully submitted,
KENNETH J. PFAEHLER MICHAEL H. BARR
SHEJAL V. DESAI Counsel of Record
Of Counsel SONNENSCHEIN NATH &
SONNENSCHEIN NATH & ROSENTHAL LLP
ROSENTHAL LLP 1221 Avenue of the Americas
1301 K Street, N.W. New York, New York 10020
Suite 600, East Tower (212) 768-6788
Washington, D.C. 20005
(202) 408-6468
Counsel for Amici Curiae William D. Araiza
and Other Constitutional and Administrative Law Professors
APPENDIX
la
APPENDIX A
LIST OF AMICI
The following amici join in this brief:
William D. Araiza, Associate Dean for Faculty,
Professor of Law and Rev. Richard A. Vachon, S.J.
Fellow, Loyola Law School, Los Angeles, California.
Elizabeth Bartholet, Morris Wasserstein Public
Interest Professor of Law and Faculty Director, Child
Advocacy Program, Harvard Law School, Cambridge,
Massachusetts.
Ivan E. Bodensteiner, Professor of Law, Valparaiso
University School of Law, Valparaiso, Indiana.
Bryan T. Camp, Professor of Law, Texas Tech
University School of Law, Lubbock, Texas.
Michael C. Dorf, Isidor and Seville Sulzbacher
Professor of Law, Columbia Law School, New York,
New York.
Cynthia R. Farina, Professor of Law, Cornell Law
School, Ithaca, New York.
‘Thomas G. Field, Jr., Professor of Law and
Director, Intellectual Property Amicus Clinic, Franklin
Pierce Law Center, Concord, New Hampshire.
Linda Jellum, Assistant Professor, Mercer Uni-
versity Walter F. George School of Law, Macon,
Georgia.
Steve Johnson, Associate Dean and Professor,
Mercer University Walter F. George School of Law,
Macon, Georgia.
2a
Mark Kemper, Assistant Professor, Department
of Political Science, and Assistant Director, Center
for Legislative Studies, Bridgewater State College,
Bridgewater, Massachusetts.
Karl M. Manheim, Professor of Law and Loyola
Director of the Program for Law & Technology of the
California Institute of Technology and Loyola Law
_ School, Loyola Law School, Los Angeles, California.
Calvin R. Massey, Professor of Law, University
of California, Hastings College of the —< San
Francisco, California.
John T. McDermott, Professor of Law, Loyola
Law School, Los Angeles, California.
Gillian E. Metzger, Professor of Law, Columbia
Law School, New York New York.
Eric J. Mitnick, Associate Dean for Academic
Affairs and Associate Professor of Law, Thomas
Jefferson School of Law, San Diego, California.
Morell E. Mullins, Professor of Law Emeritus,
University of Arkansas at Little Rock, William H.
Bowen School of Law, Little Rock, Arkansas.
Seymour H. Moskowitz, Professor of Law,
Valparaiso University School of Law, Valparaiso,
Indiana.
Malla Pollack, Professor of Law, Barkley School
of Law, Paducah, Kentucky.
Todd R. Rakoff, Byrne Professor of Adminis-
trative Law, Harvard Law School, Cambridge,
Massachusetts.
Ecward P. Richards, Harvey A. Peltier Professor
of Law and Director, Program in Law, Science, and
3a
Public Health, Louisiana State University, Paul M.
Hebert Law Center, Baton Rouge, Louisiana.
Jim Rossi, Harry M. Walborsky, Professor and
Associate Dean for Research, Florida State Univer-
sity College of Law, Tallahassee, Florida.
Peter M. Shane, Jacob E. Davis and Jacob F.
Davis II Chair in Law, Michael E. Moritz College of
Law at The Ohio State University, Columbus, Ohio.
Sidney Shapiro, University Distinguished Chair
in Law and Associate Dean for Research and De-
velopment, Wake Forest University School of Law,
Winston-Salem, North Carolina.
Kevin M. Stack, Professor of Law, Vanderbilt
University Law School, Nashville, Tennessee.
Peter L. Strauss, Betts Professor of Law,
Columbia Law School, New York, New York.
Georgene M. Vairo, Professor of Law and William
M. Rains Fellow, Loyola Law School, Los Angeles,
California.
David M. Wagner, Professor of Law, Regent Uni-
versity School of Law, Virginia Beach, Virginia. _
Christina E. Wells, Enoch H. Crowder Professor
of Law, University of Missouri School of Law,
Columbia, Missouri.
4a
APPENDIX B
[LOGO]
Congressional Research Service
Memorandum February 9, 2005
SUBJECT: Sec. 102 of H.R. 418, Waiver of
Laws Necessary for Improvement
of Barriers at Borders
FROM: Stephen R. Vifia and Todd B. Tatelman
Legislative Attorneys
American Law Division
Section 102 of H.R. 418, the REAL ID Act, cap-
tioned “Waiver of Laws Necessary for Improvement
- Of Barriers at Borders,” provides the Secretary of
Homeland Security with authority to waive all laws
he deems necessary for the expeditious construction
of the barriers authorized to be constructed by § 102
of the Illegal Immigration Reform and Immigration
Responsibility Act of 1996 (IIRITRA) (P.L. 104-208,
Div. C, codified at 8 U,S.C. § 1103 note) and bars
judicial review of such waiver decisions. This memo-
randum discusses the waiver provision in general;
the extent to which Congress has passed laws that
provide waivers comparable to §102 of H.R. 418; and
the judicial review provisions. For background infor-
mation on the border fence and § 102 of IITRIRA
please refer to CRS Report RS 22026, Border Secu-
rity: Fences Along the U.S. International Border.
5a
H.R. 418, §102
Section 102 of H.R. 418 would amend § 102(c) of
IIRIRA to read as follows:
(c) Waiver—
(1) IN GENERAL—Notwithstanding any other
provision of law, the Secretary of Homeland
Security shall have the authority to waive, and
shall waive, all laws such Secretary, in such
Secretary's sole discretion, determines neces-
sary to ensure expeditious construction of the
barriers and roads under this section.
(2) NO JUDICIAL REVIEW—Notwithstand-
ing any other provision of law (statutory
or non-statutory), no court shall have juris-
diction— |
(A) to hear any cause or claim arising from
any action undertaken, or any decision made,
by the Secretary of Homeland Security pur-
suant to paragraph (1); or
(B) to order compensatory, declaratory, in-
junctive, equitable, or any other relief for
damage alleged to arise from any such action
or decision.
Waiver Provisions
If enacted, the new § 102 would provide the Secre-
tary of Homeland Security with not only the author-
ity to waive all laws he determines necessary to
ensure the expeditious construction of the barriers
and roads under § 102 of IIRIRA, but the requirement
that the Secretary do so. This provision could provide
the Secretary with broader waiver authority than
what is currently in § 102(c) of IIRIRA. This author-
ity would apparently include laws other than the
~
She
6a
Endangered Species Act and the National Environ-
mental Policy Act, but may not include a waiver of
protections established in the Constitution.’ All laws
waived, however, must be determined by the Sec-
retary to be necessary to ensure expeditious construc-
tion of the barriers and roads. The waiver authority
provided by this amendment would also seem to
apply to all the barriers that may be constructed
under the authority of § 102 of IIRIRA—i.e., both to
barriers constructed in the vicinity of the border to
deter illegal crossing in areas of high illegal entry’
and to the barrier that is to be constructed near the
San Diego area.
Congress commonly waives preexisting laws, though
the process necessary to complete the waiver and the
number of laws waived vary considerably from pro-
vision to provision. Even more common is the use of
the phrase, “notwithstanding any other provision of
law.” While the use of a broad “notwithstanding any
"See discussion infra. During debate of a similar exemption
_ provision for the border fence in the 108th Congress, supporters
argued that labor and other non-environmental laws would not
be considered as included in the phrase “any other laws.” 151
Cong. Rec. H8899-H8901 (debate of amendment to H.R. 10). It is
also not clear if state laws would be included in this waiver
provision.
*There does not appear to be any statutory or regulatory
definition for “high illegal entry.” Note however, that over the
last seven years 97% of all illegal alien apprehensions were
made along the Southwest border. See CRS Report RL32562,
Border Security: The Role of the U.S. Border Patrol. Such a high
percentage could be noted by those who might contend that the
authority in § 102(a) of ITRIRA is more applicable, at least for
now, to our Southwest borders; ultimately, however, it is the
Secretary of DHS who determines places of “high illegal entry”
under the section.
7a
other provision of law” rarely settles the interpretive
question, such directives seem facially preclusive,
and some courts have determined that “notwith-
standing” language may serve to explicitly preempt
the application of other laws.’ Other courts, however,
have held that such provisions are generally not
dispositive in determining the preemptive effect of a
statute.*
After a review of federal law, primarily through
electronic database searches and consultations with
various CRS experts, we were unable to locate a
waiver provision identical to that of §102 of H.R.
418—i.e., a provision that contains “notwithstand-
ing language,” provides a secretary of an executive
agency the authority to waive all laws such secretary
determines necessary, and directs the secretary to
waive such laws.” Much more common, it appears,
are waiver provisions that (1) exempt an action from
other requirements contained in the Act that
authorizes the action, (2) specifically delineate the
laws to be waived, or (3) waive a grouping of similar
* See e.g., Puerto Rico v. M/V Emily S., 132 F.3d 818 (1st Cir.
1997). In instances where “notwithstanding” language has been
deemed controlling, courts sometimes buttress such decisions
with an analysis of the underlying directives or legislative his-
tory of a statute. See e.g., Illinois Nat’l Guard v. Federal Labor
Relations Authority, 854 F.2d 1396, 1402 (D.C. Cir. 1998).
* See e.g., E.P. Paup v. Director, OWCP, 999 F.2d 1341, 1348
(9th Cir. 1993); Oregon Natural Resources Council v. Thomas,
92 F.3d 792, 796 (9th Cir. 1996).
'*Qur search did not include a review of annual appropria-
tions language, which may include similar waiver provisions. It
should be noted however, that as a general proposition, appro-
priations language is limited to the year of the appropriation,
which may limit the application of any waiver.
8a
laws. The most analogous provisions that we located
appear to be, at least on their face, the following:°
© 43 U.S.C. § 1652(c): Allows the Secretary of the
Interior and other Federal officers and agen-
cies the authority to waive any procedural re-
quirements of law or regulation which they
deem desirable for authorizations that are nec-
essary for or related to the construction, opera-
tion, and maintenance of the Trans-Alaska oil
pipeline system (e.g., rights-of-way, permits,
and leases).’
e 25 U.S.C. §3406: Allows the Secretaries of the
Interior, Labor, Health and Human Services,
and Education, notwithstanding any other law,
to waive any statutory requirement, regula-
tion, policy, or procedure promulgated by their
agency that is identified. by a tribal govern-
ment as necessary to implement a submitted
tribal plan under the Indian Employment,
Training and Related Services Demonstration
Act of 1992, as amended.
e 20 U.S.C. §7426: Provides almost identical
waiver language to that of 25 U.S.C. §3406,
but for plans submitted by tribal governments
* Similarly, we found some provisions that exempt certain
transactions or entities from all laws. See e.g., 49 U.S.C. §11321
(‘A rail carrier, corporation, or person participating in that
approved or exempted transaction is exempt from the antitrust
laws and from all other law, including State and-municipal law,
as necessary to let that rail carrier, corporation, or person carry
out the transaction, hold, maintain, and operate property, and
exercise control or franchises acquired through the trans-
action.”).
“It is unclear how broadly a procedural requirement of | w
has been or could be interpreted.
9a
for the integration of education and related
services provided to Indian students.
There are also many other provisions that arguably
grant broad waiver authority similar to that of § 102,
but contain qualifications or reporting requirements
that seem to limit their breadth.” Some of these
waiver provisions grant the President or the head of
an Executive agency the authority to waive a law[s] if
deemed necessary in the national interest or in the
interest of national defense. We cite here, some exam-
ples of this type of waiver Authority:’
e 43 U.S.C. §2008: Allows the President to waive
provisions of federal law he deems necessary
in the national interest to facilitate the construc-
tion or operation of crude oil transportation
systems or the Long Beach-Midland project.
The President must submit his waiver to Con-
gress, and Congress must pass a joint resolu-
tion before the President can take such actions
under the waivers.
e 15 U.S.C. 2621: Allows the Administrator of
the EPA to waive compliance with the Toxic
Substances Control Act upon a request and
determination by the President that the re-
quested waiver is necessary in the interest of
national defense.
* Examples of waiver authority with a congressional notifica-
tion element include: 15 U.S.C. §719f; 22 U.S.C. §2378; 22
- U.S.C. §2371; and 41 U.S.C. §413. Other examples of broad yet
somewhat more limited waiver authority include: 10 U.S.C.
§433; 22 U.S.C. §3861; 25 U.S.C. §1680h; 48 U.S.C. §1469d; and
50 U.S.C. §198.
° Other waiver authority in the national interest include: 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).
10a
¢ 10 U.S.C. §433: Allows the Secretary of De-
fense, in connection with a “commercial activ-
ity,” to waive federal laws pertaining to the
“management and administration of Federal
agencies,” if compliance would create an unac-
ceptable risk to an authorized intelligence
activity. This provision further requires that
the waiver be in writing and specifically de-
scribes the types of activities that pertain to
the “management and administration of fed-
eral agencies,” though it does not specify the
actual laws. |
As mentioned above and as the examples we have set
forth arguably demonstrate, the breadth of waiver
authority granted by § 102 of H.R. 418 does not
appear to be common in the federal law searched.
Judicial Review Provisions
By including the language “no court,” §102(c)(2) of
H.R. 418 appears to preclude judicial review of a
Secretary’s decision to waive provisions of law by
both federal and state courts. It is generally accepted
that Article III of the United States Constitution
grants Congress the authority to regulate the juris-
diction, procedures, and remedies available in fed-
eral courts. However, what remains uncertain is
whether Congress’s authority, pursuant to Article III,
extends to the jurisdiction, procedures, and remedies
of state courts. In addition, it remains uncertain to
what extent Congress has Article III authority to
prevent courts, state or federal, from addressing and
’ Article III of the Constitution provides that “(t]he judicial
Power of the United States, shall be vested in one supreme
Court, and in such inferior Courts as the Congress may from
time to time ordain and establish.” U.S. CONST. Article III.
lla
remedying issues arising under the United States
Constitution.
With respect to Congress’s ability to control the
jurisdiction of state courts, the Supreme Court has
ruled that subject to a congressional provision to the
contrary, state courts have concurrent jurisdiction
over all the classes of cases and controversies enu-
merated in Article III, except for suits between
States, suits in which either the United States or a
foreign state is a party, and those considered within
the traditional jurisdiction of admiralty law." Thus,
it appears possible to argue that Congress has a
plenary power to allocate jurisdiction between the
state and federal courts. In other words, if, for exam-
ple, Congress can make jurisdiction over an area
of law exclusively federal,” thereby depriving state
courts of any ability to hear the claim, it appears that
Congress may also be able to remove a cause of action
" See 28 U.S.C. §§ 1251, 1331 et seq. (2004). In fact, the
presumption is that state courts enjoy concurrent jurisdiction,
and Congress must explicitly or implicitly confine jurisdiction to
the federal courts to oust the state courts. See Gulf Offshore Co.
v. Mobil Oil Corp., 453 U.S. 473, 477-84 (1981); see also Tafflin
v. Levitt, 493 U.S. 455 (1990); Yellow Freight System, Inc. v.
Donnelly, 494 U.S. 820 (1990). For example, Justice Scalia has
argued that, insomuch as state courts have jurisdiction gener-
ally because federal law is law for them, Congress can provide
exclusive federal jurisdiction only by explicit and affirmative
statement in the text of the statute, but as can be seen that is
not now the rule. See Tafflin v. Levitt, 493 U.S. 455, 469 (1990).
* Perhaps the best example of an area of law that Congress
has made exclusively federal is immigration. Federal Courts,
however, also appear to have exclusive jurisdiction over the
federal antitrust laws, despite the fact that Congress has never
spoken either expressly or implicitly. See General Investment
Co. v. Lake Shore & Michigan Southern R.R. Co., 260 U.S. 261,
287 (1922).
12a
from state courts without concurrently granting juris-
diction to the federal courts.
State courts, however, are often considered to be
independent and autonomous from the federal court
system. This independent status has led some schol-
ars to argue that because the Constitution appears
to reserve to the states the authority to control the
jurisdiction of their own courts, Congress’s “only
means of allocating jurisdiction is through control of
the federal court’s jurisdiction.” The argument that
state courts are autonomous can be derived, in part,
from the Supreme Court’s doctrine with respect to its
ability to review decisions from state courts. While
the Court has the authority to review a decision of a ©
state’s highest court, it has repeatedly held that it
will not do so if the decision rests upon adequate and
independent state grounds.“ This rule is arguably
designed to protect a state’s interest in developing
and applying its own laws. Thus, it would appear
that an argument can be made that Congress does
not possess the authority to regulate the jurisdiction
of state courts directly. It may be the case, however,
that Congress’s ability to control the jurisdiction of
the federal courts indirectly affects and alters the
* Joan Steinman, Reverse Removal, 78 Iowa L. REV. 1029,
1080 (1992) (citing Tafflin v. Levitt, 493 U.S. 455, 458-59 (1990);
Gulf Oil Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 477-78
(1981); Henry M. Hart Jr., The Relations Between State and
Federal Law, 54 COLUM. L. REV. 489, 508 (1954)).
** See Colman v. Thompson, 501 U.S. 722, 729 (1991) (stating
that the Court will not review a state court decision “if the
decision of the court rests on a state law ground that is inde-
pendent of the federal question and adequate to support judg-
ment”).
ie Et
13a
jurisdiction of the state courts, which would appear to
preserve their autonomous status."
Turning to Congress’s ability to remove jurisdiction
with respect to claims arising under the Constitution,
it appears that Supreme Court precedent requires
that at least some forum be provided for the redress
of constitutional rights." While it appears that the
Supreme Court has not directly addressed whether
there needs to be a judicial forum to vindicate all
constitutional rights, it appears that the Court has
taken to noting constitutional reservations about
legislative denials of jurisdiction for judicial review of
constitutional issues, as well as construction of stat-
utes that purport to limit the Court’s jurisdiction.” At
least one justice, however, has indicated that there
have been particular cases, such as political question
cases, where all constitutional review is in effect
precluded.”
’* It should be noted, however, that a court may interpret this
provision to be preclusive, which would appear to avoid any
constitutional issues.
® See Ex Parte McCardle, 74 U.S. (7 Wall.) 506 (1869). For a
much more complete discussion of this issue, see CRS Report
RL31271, Limiting Court Jurisdiction Over Federal Constitu-
tional Issues: “Court-Stripping,” by Kenneth R. Thomas, Jan.
24, 2005.
" See Johnson v. Robinson, 415 U.S. 361, 366-67 (1974); see
also Weniberger v. Salfi, 422 U.S. 749, 762 (1975); Bowen uv.
Michigan Academy of Family Physicians, 476 U.S. 664, 681 n.
12 (1988); Webster v. Doe, 486 U.S. 592, 603 (1988); McNary v.
Haitian Refugee Center, Inc., 498 U.S. 479, 498 (1991); Felker v
Turpin, 518 U.S. 651, 660-61 (1996); INS v. St. Cyr, 533 US.
289, 298, 314 (2001).
* See Webster v. Doe, 486 U.S. 592, 612-13 (1988) (Scalia, J.,
dissenting) (“Even apart from the strict text of the Constitution,
we have found some constitutional claims to be beyond judicial
l4a
Nevertheless, the Court has generally found a
requirement that effective judicial remedies be pre-
sent. For example, in cases involving particular
rights, such as the availability of effective remedies
for Fifth Amendment takings, the Court has held
that “the compensation remedy is required by the
Constitution.”” In addition, lower federal courts appear
to have held that, in most cases, some forum must be
provided for the vindication of constitutional rights.”
Cases such as these would seem to provide a basis for
the Court to find that parties seeking to vindicate
other particular rights must have a judicial forum for
such challenges; therefore, the Court may construe
the provisions of H.R. 418 in a manner that preserves
this right.
review because they involve “political questions.” . . . In sum, it
is simply untenable that there must be a judicial remedy for
every constitutional violation. Members of Congress and the
supervising officers of the Executive Branch take the same oath
to uphold the Constitution that we do, and sometimes they are
left to perform that oath unreviewed, as we always are.”).
"° See First English Evangelical Lutheran Church of Glendale
v. Los Angeles County, 482 U.S. 304, 316 (1987) (citing Kirby
Forest Industries, Inc. v. United States, 467 U.S. 1, 5 (1984);
United States v. Causby, 328 U.S. 256, 267 (1946); Seaboard Air
Line R. Co. v. United States, 261 U.S. 299, 304-306 (1923);
Monongahela Navigation v. United States, 148 U.S. 312, 327
(1893)).
” See Battaglia v. General Motors Corp., 169 F.2d 254, 257
(2d. Cir. 1948) (stating that “while Congress has the undoubted
power to give, withhold, or restrict the jurisdiction of courts
other than the Supreme Court, it must not exercise that power
as to deprive any person of life, liberty, or property without due
process or just compensation .. . .”). In addition, other judicial
decisions point to the doctrine of sovereign immunity and the
ability of the government to limit the remedies available to
plaintiffs. See Bartlett v. Bowen, 816 F.2d 695, 719-720 (1987)
(Bork, J., dissenting).
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.