Amicus Curiae Brief — Defenders of Wildlife v. Chertoff (No. 07-1180)

A | — : FILED

fame APR 17 2008

No. 07-1180 OFFICE

: SE ter

Jn the Supreme Court of the United States

DEFENDERS OF WILDLIFE AND SIERRA CLUB,

Petitioners,

wa

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 FOURTEEN MEMBERS OF THE USS.

HOUSE OF REPRESENTATIVES AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

ALAN UNTEREINER*

ALAN D. STRASSER

Max HUFFMAN

Robbins, Russell, Englert,

Orseck, Untereiner

& Sauber LLP

1801 K Street, N.W.

Suite 411

Washington, D.C. 20006

(202) 775-4500

*Counsel of Record

TABLE OF CONTENTS

Page

Pee OE PU TP hk nc kc en ec bean il

INTEREST OF THE AMICI CURIAE........:... 1

I ais Coie dk es kn xs wcbed, wae Dace ee 3

SUMMARY OF ARGUMENT.................. 11

EINER ors k ops Sea ewes On wey ae Skee BG 12

The Fundamental Constitutional Issues Raised In

This Case Should Be Answered By This Court

Rather Than By A Single District Judge......... 12

A. Guidance Is Needed Concerning The

Permissible Scope Of Congressional

Delegations Of Waiver Authority To The

Executive Branch That Are Subject To Only

Limited Judicial Review. ................. 15

B. Section 102 Cannot Be Reconciled With This

Court’s Non-Delegation and Separation-of-

POWGOPE GUTIBDTUGOTICS. 6 oa ko a ec kes 20

RN i ee ee 25

ll

TABLE OF AUTHORITIES

Page(s)

CONSTITUTIONAL PROVISIONS:

EE a ee passim

ak nn gig wn we da wre ee ee 14

CASES:

Chadha v. INS, 634 F.2d 408 (9th Cir.

et ec Pi ek a ok o's 5 ae wmkle 21

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

NN eta a ML og ioe g Be aw Aas 6 489-0 passim

Hayne Blvd. Camps Preservation Ass'n v.

Julich, 143 F. Supp. 2d 628 (E.D. La.

el cay a ecalg bah a hoo ae 6 04 oo ne RD 17

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

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

nn as bs mw cebasedesi wen 22

Metro. Washington Airports Auth. v. Cit-

izens for the Abatement of Aircraft Noise,

ss Sap a 's's eda ese a koe 21

Riegel v. Medtronic, Inc., 128 S. Ct. 999

go ka a kg geik ky vam 06 de o0 40d 4

Touby v. United States, 500 U.S. 160

Ne i Se ad ake da ack dca 23

il

TABLE OF AUTHORITIES—Continued

Page(s)

Whitman v. American Trucking Association,

ts cg. Seen serene 3, 22

STATUTES AND RULES:

REAL ID Act § 102, 8 U.S.C. § 1103 note. .... passim

Sa Sota. OE 00 SOUMEG, oo ci ok ce hen ew ee 9

a oes 17

RE re re rere ee ee 19

eS i cade cee aa de eae 10

ache 19

ee OREM as se ka oS ee ee eee ee 16

pe ee = as sk 16, 17

42 U.S.C. § 5170a. Eee ee et ae yey ge 16, 17

a ee a 06 ko 0 4.9 o ka esol a 16, 17

RC RE haa Ab wd Wak cide he Oe eS 16, 17

on f 3d 2 | ys SR aren arn Ese errr nS 16, 17

42 U.S.C. $5192. ... 2.6... ee eee ee 16, 17

fe Se 2 ee eae arP Pr re Sere ie 8

1V

TABLE OF AUTHORITIES—Continued

Page(s)

WEUIRE OO. wk cee ee 8.

Oe ok ios ec cok deat 18-19

DN inne ¢ 4 ox Macnee eee 13

MISCELLANEOUS:

Brief for Representatives Henry A.

Waxman, David E. Skaggs, and Louise

M. Slaughter as Amici Curiae in Support

of Appellees, Clinton v. City of New York, No.

Wi-here Cree ae. G, FOO. ag ks oo ce 3

151 Cong: Rec. H459, 109th Cong., 1st Sess.

(denty od. Fem. 9, W006)... 2... ek a ae

151 Cong. Rec. H554, 109th Cong., 1st Sess.

(daily ed. Feb. 10, 008)... .... 2.6. 0.5. 6-7, 10

151 Cong. Rec. H556, 109th Cong., 1st Sess.

Sek, es BO, Rs ko ee eae wae een 18

151 Cong. Rec. H561, 109th Cong., 1st Sess.

CREE i Oy is baie kbc eae ek hi 18

The Federalist No. 47 (Madison) (Jacob E. Cooke,

Oe ee ee a oe 21

70 Fed. Reg. 55,622 (Sept. 22, 2005). ............. 9

71 Fed. Reg. 14712-03 (Mar. 23, 2006)............ 16

TABLE OF AUTHORITIES—Continued

Page(s)

712 Fed. Reg. 2,535 @an..19, 2007)... .. 2... ees 9

72 Fed. Reg. 60,870 (Oct. 26, 2007). ........... 8, 10

73 Fed. Reg. 19,077 (as amended Apr. 8,

NE el lek huge br ol Qe RS Earn wily 2 Ke a 10

73 Fed. Reg. 19,078 (as amended Apr. 8,

Me ee ia a eas dei bd ola pldce aR 10

P.m. 2645, 110th Cong., lat Sess... ...........65: 19

http://www.luke.af.mil/library/factsheets/

eg | a a a rae 9

Se I OS ea oad aie 21

Stephen R. Vina & Todd B. Tatelman,

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

Necessary for Improygment of Barriers at

Borders, Cong. Res. Serv. (Feb. 9, 2005). ..... 6,15

BRIEF OF FOURTEEN MEMBERS OF THE USS.

HOUSE OF REPRESENTATIVES AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICI CURIAE'

Amici are House Committee Chairpersons,

Members of the Committee on Homeland Security, and

Members representing districts in states that border

Mexico. They are Homeland Security Committee

Chairman Bennie G. Thompson, Energy & Commerce

Committee Chairman John D. Dingell, Transportation

& Infrastructure Committee Chairman James L.

Oberstar, Education and Labor Committee Chairman

George Miller, Rules Committee Chairwoman Louise

Slaughter, Veteran Affairs Chairman Bob Filner,

Intelligence Committee Chairman Silvestre Reyes,

Congressman Solomon Ortiz of Texas, Congressman

Sam Farr of California, Congresswoman Sheila

Jackson-Lee of California, Congresswoman Susan A.

Davis of California, Congresswoman Hilda Solis of

California, Congressman Raul M. Grijalva of Arizona,

and Congresswoman Yvette D. Clarke of New York.

The amici Committee Chairs believe that the waiver

granted by Secretary Chertoff that is the subject of this

litigation is a direct affront to the institution of Con-

' Pursuant to Rule 37.2 of the Rules of this Court, amici curiae

state that timely notice of intent to file the brief was given to and

received by all counsel of record. The parties’ letters of consent to

the filing of this brief have been lodged with the Clerk of this

Court. Pursuant to Rule 37.6 ofthe Rules of this Court, amici state

that no counsel for a party has written this brief in whole or in part

and that no person or entity other than the amici or their counsel

has made a monetary contribution to the preparation or sub-

mission of this brief.

gress. In their view, the Secretary’s use of the waiver

authority under Section 102(c) of the Illegal Immigra-

tion Reform and Immigrant Responsibility Act of 1996,

as amended by the REAL ID Act of 2005, greatly

undermines — and manifests an utter lack of respect for

— the many laws that the amici curiae (and members of

prior Congresses) have drafted, debated and defended,

and that have been enacted by the House of Represen-

tatives and Senate and signed by the President.

The amici Members of the Committee on Homeland

Security are concerned that Secretary Chertoff, in

granting the waiver that is the subject of the current

litigation (as well as three other waivers he has granted

pursuant to Section 102), is abusing his authority and

disregarding both congressional intent and constitu-

tional restrictions on Executive Branch power.

The amici Members who represent districts in

states that border Mexico have a keen interest in seeing

laws be executed prudently, in a manner that respects

the statutes and regulations that have protected their

communities for decades. These Members are also

particularly well situated to appreciate the important

competing policies reflected in the Secure Fence Act,

the REAL ID Act, and the dozens of laws critical to

protecting the residents, environment, and historical

and cultural sites in the border region.

Finally, amici are uniquely situated to apprise the

Court of the importance of the issues presented here to

the proper exercise of their constitutionally defined

legislative responsibilities. Members of the U.S.

Congress often make their views known to this Court in

cases that raise issues concerning the preservation of

* ays

aa

the constitutional balance of powers among the co-equal

Branches of Government.’ This is such a case.

STATEMENT

The petition for certiorari presents two significant,

closely related questions concerning the fundamental

limits on Congress’s exercise of legislative power under

Article I of the Constitution — an area of law that this

Court has not addressed since 2001. See Whitman v.

American Trucking Associations, Inc., 531 U.S. 457

(2001). No doubt because of the extraordinary nature

of the waiver provision challenged in this litigation, this

Court has never had occasion to address the precise

constitutional issues raised in this case. The ultimate

resolution of those weighty questions — whether by the

Court’s exercise of further review or by its‘decision to

leave in place the opinion of a single district judge as

the final word concerning Congress’s Article I authority

— has the potential to fundamentally redefine the way

federal laws are made and enforced. As Congress has

eliminated intermediate appellate review of all issues,

including the constitutional ones presented in this case,

the only opportunity for a second look is through the

certiorari process in this Court. For the reasons set

forth in the petition for certiorari and below, the Court

should grant review to resolve the important constitu-

tional issues presented, to provide greater guidance

concerning the meaning of Article I and the non-delega-

* See, e.g., Brief for Representatives Henry A. Waxman, David E.

Skaggs, and Louise M. Slaughter as Amici Curiae in Support of

Appellees, Clinton v. City of New York, No. 97-1374 (filed Apr. 3,

1998) (urging the result ultimatcly reached by the Court that the

line-item veto was unconstitutional).

tion doctrine in this setting, and to correct the district

court’s flawed decision.

1. At issue in this case is the constitutionality of a

statutory waiver provision that was enacted as a rider

toan unrelated emergency wartime appropriations bill.

See Pub. L. No. 109-13, 119 Stat. 231, § 102, codified at

8 U.S.C. § 1103 note (“Section 102”). Section 102

broadly confers on the Secretary of the Department of

Homeland Security (DHS) “the authority to waive all

legal requirements such Secretary, in such Secretary's

sole discretion, determines necessary to ensure expedi-

tious construction of the barriers and roads under this

~ section.” Ibid. (emphasis added). The term “all legal

requirements’ is sweeping and presumably includes all

forms of state and local law, including state constitu-

tions, statutes, regulations, rules, and common law.

Riegel v. Medtronic, Inc., 128 S. Ct. 999, 1007-09 (2008).

It also includes all forms of federal law, including

treaties, statutes, interstate compacts, regulations,

court rules, and federal common law — except, of course,

for legal requirements imposed by the U.S. Constitu-

tion.

In addition to granting the waiver authority,

Section 102 contains the following stringent limitations

on judicial review:

(2) FEDERAL COURT REVIEW. -

(A) IN GENERAL. — The district courts of the

United States shall have exclusive jurisdiction to

hear all causes or claims arising from any action

undertaken, or any decision made, by the Secretary

of Homeland Security pursuant to paragraph (1). A

cause of action or claim may only be brought alleg-

ing a violation of the Constitution of the United

States. The court shall not have jurisdiction to hear

any claim not specified in this subparagraph.

(B) TIME FOR FILING OF COMPLAINT. — Any

cause or claim brought pursuant to subparagraph

(A) shall be filed not later than 60 days after the

date of the action or decision made by the Secretary

of Homeland Security. A claim shall be barred

unless it is filed within the time specified.

(C) ABILITY TO SEEK APPELLATE REVIEW. —

An interlocutory or final 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.

Ibid. (emphasis added). Thus, the statute categorically

bars all litigation challenging Section 102 in the state

courts; categorically bars all litigation raising chal-

lenges to the Secretary's compliance with Section 102’s

substantive requirements (including the requirement

that the Secretary’s waiver be “necessary to ensure

expeditious construction of the barriers and roads

under this section”); bars appellate review by the

United States Courts of Appeals of the federal district

court’s rulings on the constitutionality of Section 102

(thus ensuring that intercircuit conflicts — a major

reason why this Court exercises its certiorari jurisdic-

tion — will never develop); and strips this Court of

mandamus jurisdiction and limits its review to the

certiorari process. Moreover, Section 102 includes

extremely short time limits — such as the 60-day filing

limit — that may have the effect of insulating certain

federal constitutional claims from judicial review. This

includes, for example, takings claims that do not

become ripe within 60 days of the Secretary’s waiver

decision.

During the drastically foreshortened floor debate on

Section 102, one of the undersigned amici curiae

observed:

To my knowledge, a waiver this broad is unprece-

dented. It would waive alli laws, including laws

protecting civil rights; laws protecting the health

and safety of workers; laws, such as the Davis-

Bacon Act, which are intended to ensure that

construction workers on federally-funded projects

are paid the prevailing wage; environmental laws;

and laws respecting sacred burial grounds. It is so

broad that it would not just apply to the San Diego

border fence that is the underlying reason for this

provision. It would apply to any other barrier or

fence that may come about in the future.

151 Cong. Rec. H459, 109th Cong., 1st Sess. (daily ed.

Feb. 9, 2005) (statement of U.S. Representative

Jackson-Lee). A report by the nonpartisan Congressio-

nal Research Service on the use of waivers and regula-

tion of judicial review in legislation confirmed the truth

of Ms. Jackson-Lee’s observation that Section 102 is

“unprecedented.” See Stephen R. Vina & Todd B.

Tatelman, Sec. 102 of H.R. 418, Waiver of Laws Neces-

sary for Improvement of Barriers at Borders, Cong. Res.

Serv. (Feb. 9, 2005), at 2 (reaching that conclusion

based on“a review of federal law, primarily through

electronic database searches and consultations with

various CRS experts”); see also 151 Cong. Rec. H554

(daily ed. Feb. 10, 2005) (statement of U.S. Representa-

tive Farr) (““Mr. Chairman, it has never been done

before, waiving all labor laws, all contract laws, all

small business laws, all laws relating to sacred places.

It is a broad sweep, just a total repeal of all of those

laws or a waiver of all those laws.”).

2. This litigation arose after the Bureau of Land

Management (BLM) granted a permanent right-of-way

to DHS to permit it to build a fence across biologically

and environmentally sensitive areas along the border

between the United States and Mexico. Pet. App. 1a-

2a. Defenders of Wildlife and the Sierra Club (petition-

ers in this Court) sued seeking preliminary and perma-

nent injunctive relief and moved for a temporary

restraining order. The district judge recognized that

petitioners were likely to succeed in their challenge to

‘BLM’s decision to grant the right-of-way without fully

complying with the National Environmental Policy Act

(NEPA), and that BLM’s decision presented a danger of

harm to the public interest. It accordingly issued a

temporary restraining order. Pet. App. 3a.

On October 10, 2007, the district court accordingly

ordered DHS to cease building the border fence without

first preparing a full Environmental Impact Statement,

as required by NEPA.’ See Pet. App. 3a. Secretary

* Since 1970, NEPA has “declare[d] a national policy” seeking to

encourage productive and enjoyable harmony between man

and his environment; to promote efforts which will prevent or

eliminate damage to the environment and biosphere and

stimulate the health and welfare of man; [and] to enrich the

understanding of the ecological systems and natural resources

important to the Nation.

Chertoff responded swiftly to the federal court’s order.

On October 26, 2007, he unilaterally concluded that the

goal of constructing a fence along the border between

Arizona and Mexico outweighed the policies contained

in 19 different federal statutes, including the Adminis-

trative Procedure Act. See Pet. App. 5a n.4 (citing 72

Fed. Reg. 60,870). That waiver decision was reached

without any public-record consultation with Congress

or any of the expert federal agencies that administer

the federal laws being waived, including the Environ-

mental Protection Agency, the Department of the

Interior, the Department of Agriculture, the Fish and

Wildlife Service, or the Council on Environmental

Quality.

“I determine,” the Secretary further proclaimed in

granting the waiver,

that * * * the lands covered by the Temporary

Restraining Order (TRO) signed by Judge Ellen S.

Huvelle on October 10, 2007, in the case of Defend-

ers of Wildlife et al. v. Bureau of Land Management

* * * is an area of high illegal entry.

72 Fed. Reg. 60,870. Respondent Chertoff went on to

conclude that “it is necessary” to “waive in their en-

tirety” 19 federal statutes in order to complete fence

construction.* Of the 19 statutes waived, only two —

42 U.S.C. § 4321. Congress and the President chose to implement

that policy by requiring, for all “major Federal actions.” a “detailed

statement” describing, among other things, “environmental

impact[s]” and “alternatives” to the action to be taken. Hd.

§ 4332(C).

* See Pet. 7 & n.3 (listing the 19 waived statutes).

NEPA and the Arizona-Idaho Conservation Act, Pub. L.

No. 100-696, 102 Stat. 4571, codified at 16 U.S.C.

§ 460xx to 460xx-6 — were raised in the original lawsuit

in the district court. See Pet. App. 3a.

Many of the “waived” statutes are pillars of U.S.

environmental and historical and cultural preservation

policy. Every one of the waived statutes was passed by

both houses of Congress and signed into law by the

President. Thus, each is the product of the “single,

finely wrought and exhaustively considered, procedure”

prescribed by the Constitution for enacting statutes.

Clinton v. City of New York, 524 U.S. 417, 439-40 (1998)

(quoting INS v. Chadha, 462 U.S. 919, 951 (1983)).

The October 26 waiver. at issue in this case was the

third waiver granted by Secretary Chertoff under

Section 102. It was also the broadest that had been —

granted as of that date. The first was a September 22,

2005, waiver of seven environmental and historic

preservation laws plus the Administrative Procedure

Act, applicable to 14 miles of fence being constructed in

the vicinity of San Diego. See 70 Fed. Reg. 55,622. The

second was a January 19, 2007, waiver of eight laws

plus the Administrative Procedure Act, in connection

with fence construction in the Barry M. Goldwater

Range. See 72 Fed. Reg. 2,535.° With each waiver the

Secretary ominously “reserve[d] the authority to make

further waivers from time to time under the authority

granted to me by section 102(c) of the IIRIRA, as

* The Goldwater range is an Air Force and Marine armament

testing facility in southwestern Arizona. See

http://www.luke.af.mil/library/factsheets/factsheet.asp?id=5062.

10

amended by section 102 of the REAL ID Act, as I may

determine to be necessary to accomplish the provisions

of section 102 of TRIRA.” 72 Fed. Reg. 60,870. Thus,

the Secretary from the very beginning interpreted his

delegated authority much more broadly even than the

stated intent of the sponsors of Section 102, which was

to expedite construction of the portion of the border

fence in the San Diego area. See 151 Cong. Rec. H554

(daily ed. Feb. 10, 2005) (statement of U.S. Representa-

tive Sensenbrenner) (discussing the need to finish

“plugging the hole in the fence south of San Diego”).

3. After the petition for certiorari was filed in this

case, the Secretary granted two waivers on April 3,

2008. These latest waivers together cover vast

stretches of the U.S.-Mexico border in California,

Arizona, New Mexico and Texas. See 73 Fed. Reg.

19,077 (as amended Apr. 8, 2008) (Hidalgo County,

Texas); 73 Fed. Reg. 19,078 (as amended Apr. 8, 2008)

(California, Arizona, New Mexico and Texas). They

seem designed to test the Court’s tolerance of the

Secretary’s far-reaching waiver authority. The broader

of the two April 3 waivers defeats application of 35

statutes (including the Administrative Procedure Act)

(73 Fed. Reg. at 19,080). The Secretary’s determination

“that it is necessary that I exercise the authority that

is vested in me” to waive those numerous statutes has

the effect of subordinating more than a century’s worth

of legislation (the oldest waived statute is the Rivers

and Harbors Act of 1899, 33 U.S.C. § 403) to the uni-

11

tary, and politically contentious, policy of building a

border fence.®

SUMMARY OF ARGUMENT

Certiorari is warranted in this case for two distinct

reasons. First, the questions raised in the petition

present such a danger of confusion on matters of

utmost constitutional significance that, even in ordi-

nary circumstances, they would be deserving of this

Court’s attention. Second, the statutory provision at

issue in this case contains restrictions on judicial

review that are anything but ordinary. Because the

statute eliminates intermediate appellate review of the

important constitutional questions raised by the

petition, the final word on those questions will be that

of a single district judge unless this Court grants the

petition for certiorari.

Guidance is needed concerning the permissible

scope of congressional! delegations of waiver authority

to the Executive Branch that are subject to only limited

judicial review. Delegations of waiver authority are a

useful legislative tool that Congress has employed to

assist in efficient and effective governance. But such

delegations also present dangers of violating the Article ©

I scheme for law-making, which operates to ensure a

structural check on the concentration of power in one

Branch of Government. Congress looks to this Court’s

* It is doubtful that the Secretary’s waiver decisions would pass

muster if they were reviewed for compliance with the statutory

waiver standard. Notably, the waivers uniformly have been much

broader than any actual challenges to DHS’s actions have been.

See pages 8-10, supra.

12

authoritative guidance in carrying out Congress’s

responsibility of complying with Article I. Because the

broad waiver authority, elimination of judicial review

of compliance with the statutory standard, and severe

curtailment of appellate review of constitutional issues

in Section 102 are unique, the only directly on-point

authority — unless this Court intervenes — is the district

court opinion below.

And that opinion, which again is not subject to

intermediate appellate review, is wrong. Section 102

cannot be squared with this Court’s non-delegation and

separation-of-powers jurisprudence. Combining the

features of a sweeping delegated waiver provision with

an elimination of judicial review of statutory compli-

ance (and a severe restriction on review even for

constitutionality), Section 102 places in the hands of an

unelected Executive Branch official the power to undo

the work of Congress, without any commensurate

obligation to justify, or defend, that decision. That

transgresses the procedure set forth in Article I for

making law. It also undermines the “intelligible princi-

ple” requirement for legislative delegations of author-

ity. The Court should grant the petition for certiorari.

ARGUMENT

The Fundamental Constitutional Issues Raised

In This Case Should Be Answered By This

Court Rather Than By A Single District Judge

The issues presented by the petition for certiorari

have been examined only by a single Article III judge,

even though they raise fundamental questions concern-

ing the manner in which laws are passed and executed.

13

There is no possibility of further review by any court

except this one. That remarkable circumstance merits

the granting of the petition, which in any event clearly

raises “important question(s] of federal law that ha[ve]

not been, but should be, settled by this Court.” S. Ct. R.

10(c).

Statutory provisions authorizing administrative

waivers of statutory requirements or imposing proce-

dural regulations of judicial review — such as requiring

suit to be brought in a particular venue, or limiting

appellate review to a particular circuit court — can be

legitimate tools of responsible governance, when used

in moderation. But waiver authority granted by statute

ordinarily is quite limited in scope and is often vested

in an expert administrative agency that is charged with

administering the underlying statute that can be

waived. Here, in contrast, Section 102 of the REAL ID

Act grants to Secretary Chertoff far-reaching power to

waive an unlimited set of federal statutes, treatise,

regulations, and court rules which he has no role in

administering and as to which he has no expertise

whatsoever. It does not require the Secretary even to

consult the agencies that have the relevant expertise or

authority to administer the statute. Section 102 also

grants him sweeping authority to waive state laws in

all of their myriad forms. Moreover, as the decision

below illustrates, the line between permissible uses of ©

administrative waiver provisions and_ procedural

regulations concerning the scope and manner of judicial

review, and _ constitutionally impermissible waiver

provisions and the elimination of judicial review, is

poorly understood. This case is a perfect vehicle for the

Court to offer much-needed guidance on this fundamen-

14

tal constitutional question to the co-equal Branches of

Federal Government.

Certiorari is also warranted for another reason.

Section 102 of the REAL ID Act is deeply problematic.

In addition to its grant of unprecedented waiver author-

ity, Section 102 eliminates any form of review of a

waiver decision for statutory compliance. Thus, noth-

ing prevents respondent from granting a waiver with-

out ever explaining why it is “necessary to ensure

expeditious construction of the barriers and roads

under this section.” Indeed, nothing prevents Secretary

‘Chertoff from granting a waiver when no such necessity

actually exists. He is entirely free to flout the will of

Congress, or even to “interpret” away Section 102’s

substantive requirements by suggesting that “neces-

sary” means “convenient” or “expedient” — and Congress

has provided that no court, state or federal, including

this Court, can do anything about that.

The glaring flaws in Section 102 are, in amici’s

view, structural and irremediable. The harm caused —

the subordination of republican principles written into

Articles I and II of the U.S. Constitution — is inherent

in the violation. “Liberty is always at stake when one or

more of the Branches seek to transgress the separation

of powers.” Clinton, 524 U.S. at 450 (Kennedy, J.,

concurring). Unless this Court grants the petition, that

harm will go unremedied. Secretary Chertoff's most

recent waiver decisions demonstrate that the harm will

be compounded unless this Court intervenes now.

15

A. Guidance Is Needed Concerning The Permissi-

ble Scope Of Congressional Delegations Of

Waiver Authority To The Executive Branch

That Are Subject To Only Limited Judicial

Review

Congress has an independent duty to evaluate the

constitutionality of its own enactments. But Congress

legislates with an eye toward this Court’s definitive and

binding interpretation of constitutional standards.

Where confusion exists and this Court nonetheless

stays its hand, Congress must legislate against the

backdrop of that uncertainty. The result is legislation

like Section 102, which presents serious constitutional

difficulties.

1. Waiver provisions and reasonable procedural

regulations of the scope and manner of judicial review

are important arrows in the legislator’s quiver. As this

Court has recognized, executive waivers of statutory

requirements have been used many times in the history

of the Republic. See Clinton, 524 U.S. at 444-45 (1998)

(citing statutes and interpreting decisions).’ The

ubiquity and importance of these tools in the legislative

process, and the need for their continued use in the

future, underscores the importance of this Court’s

review in this case. Cf. Chadha, 462 U.S. at 944 (“our

inquiry is sharpened rather than blunted by the fact

* See also Pet. App. 10a n.5 (listing examples); Stephen R. Vina &

Todd B. Tatelman, Sec. 102 0f H.R. 418, Waiver of Laws Necessary

for Improvement of Barriers at Borders, Cong. Res. Serv. (Feb. 9,

2005), at 4-5 & nn.8-9 (listing examples).

16

that Congressional veto provisions are appearing with

increasing frequency in statutes”).

For example, waivers of NEPA’s environmental

review requirements are commonplace in the context of

federal disaster relief efforts under provisions of the

Stafford Act. See Pub. L. No. 93-288, 88 Stat. 143, as

amended, codified at 42 U.S.C. §§ 5121-5206. By

exercising a power granted in one of the listed Stafford

Act provisions, the Executive Branch effects a waiver of

NEPA’s requirements. See, e.g., 71 Fed. Reg. 14712-03

(Mar. 23, 2006) (employing “alternative arrangements”

to comply with NEPA in rehabilitating critical infra-

structure and observing that certain rehabilitation

activities are exempted from NEPA under the Stafford

Act). |

Recent examples of appropriate application of the

Stafford Act exemptions occurred in the context of relief

efforts following Hurricanes Katrina and Rita in 2005

and 2006, respectively. See 42 U.S.C. §§ 5159 (exempt-

ing from NEPA federal actions authorized elsewhere in

the statute), 5170a (authorizing President to provide

federal assistance in support of state or local response

efforts), 5170b (same for assistance in response to

immediate threats to life and property), 5172 (authoriz-

ing President to contribute to restoration of public or

certain private non-profit facilities), 5173 (authorizing

President to assist in debris removal), 5192 (authoriz-

ing general federal emergency assistance to state and

local governments).

Waivers such as those employed in the wake of

natural disasters are without question essential tools of

effective governance in emergency circumstances.

17

Congress will undoubtedly continue to include them in

legislation with the expectation that the Executive

Branch will employ them prudently. The Stafford Act

reflects an appropriately restricted congressional

delegation of its power to Executive Branch officials

who possess the relevant expertise to make the deci-

sions in question. Thus, for example, Section 5170a

applies only “[i]n af] major disaster’ (§ 5170a); is

limited to efforts to restore a facility to its pre-disaster

condition (§ 5159); and applies only to an enumerated

list of specified activities (§ 5170a(1)-(5)). Section

5170b has a similar structure and similarly limits the

waiver authority. And sections 5172, 5173 and 5192

also carefully limit the circumstances in which N EPA

waivers are permitted.®

Section 102, by contrast, permits a single official in

‘the Executive Branch to waive application of every

imaginable federal statute, from environmental protec-

tion to child labor laws to transportation safety.’

* Waivers under the Stafford Act are subject to judicial review ©

under the Administrative Procedure Act. See Hayne Blud. Camps

Preservation Ass’n v. Julich, 143 F. Supp. 2d 628, 633 (E. D. La.

2001) (citing 5 U.S.C. § 706).

* Two amici raised this precise issue during floor debate on the

statute and related amendments. Representative Dingell pointed

out that the bill

would give power to the Secretary of Homeland Security to

waive any public health law such as the Safe Drinking Water

Act, the Clean Water Act, as well as transportation safety,

hazardous materials transportation and road construction

standards. In addition, it would grant DHS unchecked

authority to abrogate criminal law, child labor laws, laws that

protect workers, civil rights laws, ethics laws for clean

18

Exactly where to draw the line between a waiver

provision like that in the Stafford Act — which amici

believe restricts Executive Branch discretion suffi-

ciently to meet the constitutional standards for dele-

gated authority and separation of powers — and an

unconstitutional waiver provision is not entirely clear

under this Court’s decisions. Further guidance from

’ this Court is needed.

2. The district court’s treatment of Section 102 also

creates confusion regarding the appropriate legislative

‘use of procedural regulations of the scope and manner

of judicial review. Like waiver provisions, such proce-

dural regulations of judicial review of agency actions

are ubiquitous and important tools for efficient and

effective governance.

A recent example is a procedural regulation of

judicial review in Section 934 of the Energy Independ-

ence & Security Act of 2007, Pub. L. No. 110-140, 121

contracting and procurement policy.

151 Cong. Rec. H561 (daily ed. Feb. 10, 2005) (remarks of Rep.

Dingell). And Representative Oberstar warned that

the Department of Homeland Security could select a contrac-

tor without competitive bidding, use undocumented workers,

violate child labor laws, pay the workers less than the mini-

mum wage, exempt contractors from Federal and State

withholding; workers could be forced to put in 18-hour-days

without overtime pay, in unsafe conditions, and be trans-

ported in trucks used for hazardous cargo; and * * * the

Secretary [would have] discretion to have these workers

construct fences and roads through private property.

151 Cong. Rec. H556 (daily ed. Feb. 10, 2005) (remarks of Rep.

Oberstar). vi

19

Stat. 1492 (Dec. 19, 2007), codified at 42 U.S.C.

§ 17373. That provision requires that all appeals from

claims arising under the 1997 Vienna Convention on

Supplementary Compensation for Nuclear Damage

must be taken to the United States Court of Appeals for

the D.C. Circuit. § 17373(i)(1). Similarly, the Carbon-

Neutral Government Act of 2007, H.R. 2635, 110th

Cong., Ist Sess., a bill sponsored by Chairman Waxman

of the House Committee on Oversight and Government

Reform, includes a provision (Section 212) that

regulates judicial review. It regulates total liabilities

that may be imposed, the courts (federal only) that may

hear claims of a violation, and the proper venue for

petitions for review of agency action (restricting such

review to the D.C. Circuit). Appeals in patent cases,

including challenges to Patent and Trademark Office

actions, have been available exclusively in the Federal

Circuit for decades. See 28 U.S.C. § 1295(a)(4)(C); 35

U.S.C. § 141.

Those examples, of course, are nothing like the

complete elimination of judicial review of the

Secretary's action for compliance with Section 102

itself, or the elimination of all appellate review in the

U.S. Courts of Appeals of even constitutional claims

brought challenging Section 102. See pages 4-6, 17 n.9,

supra.

There can be no doubt that the much more stringent

limits on judicial review of Section 102 might appear

expedient, especially when the decision to be reviewed

is — like the Secretary’s waiver at issue in this case —

politically polarizing. But this Court has stated

repeatedly that “Executive action under legislatively

20

delegated authority that might resemble ‘legislative’

action in some respects is * * * always subject to check

by the terms of the legislation that authorized it; and if

that authority is exceeded it is open to judicial review.”

Chadha, 462 U.S. at 953 n.16. Congress legislates with

this critical limitation in mind. If left undisturbed, the

district court’s approval of Section 102’s functional

elimination of judicial review will undermine that

understanding.

B. Section 102 Cannot Be Reconciled With This

Court’s Non-Delegation and Separation-of-

Powers Jurisprudence

This Court’s separation-of-powers and non-

delegation jurisprudence of recent decades teaches two

important lessons. First, legislation, including

statutory repeals, may come into existence only through

the procedures specified in Article I of the Constitution.

Clinton, 524 U.S. at 439-40. Second, concentration of

power in one branch of government to a degree beyond

that contemplated by the Constitution presents

intolerable risks of harm to individual liberty. Chadha,

462 U.S. at 950-51. The decision below disregards both

of these crucial teachings.

1. Chadha held unconstitutional a provision of the

Immigration and Nationality Act that allowed the

House to disapprove a determination of non-deporta-

bility by the Attorney General (the Executive Branch

official charged with administering the Immigration

and Nationality Act). See 462 U.S. at 958-59. The risk

the Court sought to avoid was the subordination of the

protections provided by the constitutional requirements

for legislation (with all their “cumbersomeness and

21

delays”) to “convenient shortcut|s].” Jd. at 958. If that

statute was interpreted to amount to amendment or

repeal of the existing provision of the act, it still

violated Article I, because “[a]mendment and repeal of

statutes, no less than enactment, must conform with

Art. I.” 462 U.S. at 954.

Chadha dealt: specifically with Congress

encroaching on Executive Branch prerogatives through

a violation of the Presentment Clause of Article I. But

it cannot be disputed that abuse of Executive Branch

authority — like that at issue in this case. — was a

primary concern of the framers of our Constitution,

then only recently freed from rule by the British:Urown.

The 56 signatories to the Declaration of Independence

agreed that “[t]he history of the present King of Great

Britain is a history of repeated injuries and

‘usurpations, all having in direct object the

establishment of an absolute Tyranny over these

States.” U.S. Decl. of Indep.; see also Metro.

Washington Airports Auth. v. Citizens for the

Abatement of Aircraft Noise, 501-U.S. 252, 273 (1991)

(‘The abuses by the monarch recounted in the

Declaration of Independence provide dramatic evidence

of the threat to liberty posed by a too powerful

executive.”). These concerns about overreaching by the

executive were echoed in other founding-era documents.

See, e.g., The Federalist No. 47 (Madison) at 324-26

(Jacob E. Cooke, ed., 1961) (quoted in Chadha v. INS,

634 F.2d 408, 421 n.12 (9th Cir. 1980) (Kennedy, J.)).

The legislation at issue in Clinton gave to the

President the legislative power to repeal portions of

congressional enactments. See 524 U.S. at 438 (“In

22

both practical and legal effect, the President has

amended two Acts of Congress by repealing a portion of

each.”). As with the legislative veto in Chadha, the

concern in Clinton for Executive Branch encroachment

on the legislative function also raised substantial

constitutional issues. See id. at 450 (Kennedy, J.,

concurring) (“Separation of powers was designed to

implement a fundamental insight: Concentration of

power in the hands of a single branch is a threat to

hiberty.”). This case, like Clinton, presents the concern

for Executive Branch overreaching. And in that regard,

as petitioners have persuasively shown (Pet. 19-24), the

unconstitutional line item veto act seemingly is

indistinguishable in practical effect from the waiver

provision of Section 102. Compare Clinton, 524 U.S. at

436 (describing the line-item-veto act) with Pet. App.

3a-4a (describing the waiver provision of Section 102).

2. The non-delegation inquiry is a_ specific

application of the separation-of-powers analysis. It

operates to ensure that the granting of authority by

Congress to another branch of government does not

amount to an impermissible delegation of legislative

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

276 U.S. 394, 406 (1928) (“it is a breach of the national

fundamental law if Congress gives up its legislative

power and transfers it to the President, or to the

judicial branch”). The “intelligible principle” standard

that this Court announced as early as 1928, in J. W.

Hampton, and repeated recently in American Trucking

Associations, 531 U.S. at 474, serves two vital purposes.

It ensures effective judicial review of a delegated

function for compliance with the statutory criteria. It

also ensures political accountability.

23

The court below concentrated on the principle

advanced in Section 102 — “necessary to ensure

expeditious construction of the barriers and roads

under this section” — and concluded that it was a

sufficient “intelligible principle” under this Court's

precedents to render the delegation permissible. Pet.

_ App. 15a. That ruling ignored a key component of the

intelligible principle standard: the availability of

judicial review of compliance with the constraining

principle set forth in the statute. Without such review,

the Secretary’s decision “in such Secretary’s sole

discretion” has the force of law. Nothing would permit

a court to “ascertain whether the will of Congress has

been obeyed.” Touby v. United States, 500 U.S. 160,

168-69 (1991) (internal quotation omitted). The critical

question under this Court’s precedents, then, is not

merely whether the statute provides an “intelligible

principle.” It is whether the exercise of delegated

authority is functionally reviewable for compliance with

the statutory standard. Section 102 crosses the line

between a reasonable procedural regulation, and an

impermissible elimination, of judicial review.

The district court also ignored the second rationale

behind the “intelligible principle” standard. An

excessively broad delegation is an exercise in passing

the proverbial buck. It gives to an administrative

official, who is not answerable for his decisions to the

electorate, the authority to make the difficult political

decisions Congress and the President might wish to

avoid. The waivers implemented by Secretary Chertoff

in this case (and his other waivers) are actions that

might be politically problematic to achieve through the

Article I legislative process. But “{flailure of political

24

will does not justify unconstitutional remedies.”

Clinton, 524 U.S. at 449 (Kennedy, J., concurring).

To be sure, political expedience is not the only

possible justification for delegated authority.

Delegation can also be efficient. The broad waiver in

Section 102 allows Congress to avoid hearings, debates,

and fact-finding on the “necessity” to waive application

of 35 federal statutes. But the efficiency rationale no

more supports an unconstitutional delegation than does

the failure of political will. “[T]he fact that a given law

or procedure is efficient, convenient, and useful in

facilitating functions of government, standing alone,

will not save it if it is contrary to the Constitution.”

Chadha, 462 U.S. at 944.

The questions presented by the petition are of such

weighty constitutional moment, and are so cleanly

presented on the record below, that the case is a perfect

vehicle for this Court’s review. The decision by the

single district judge below is incorrect and appellate

review is needed. Only by granting certiorari can this

Court ensure that its co-equal Branches of Government

have the guidance they need to discharge their

functions in ways that respect the constitutional rights

of all individuals and organizations in the United

States, which amici are charged with protecting.

25

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

APRIL 2008

ALAN UNTEREINER*

ALAN D. STRASSER

Max HUFFMAN

Robbins, Russell, Englert,

Orseck, Untereiner

& Sauber LLP

1801 K Street, N.W.

Suite 411

Washington, D.C. 20006

(202) 775-4500

*Counsel of Record