Petition for Writ of Certiorari — County of El Paso, Texas v. Napolitano (No. 08-751)

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WW) A\) 08-751 DFC 10 2008

No. OFFICE OF THE CLERK

Jn the Supreme Court of the Anited States

COUNTY OF EL PASO, ET AL.,

Petitioners,

MICHAEL CHERTOFF, SECRETARY,

U.S. DEPARTMENT OF HOMELAND SECURITY, AND

U.S. DEPARTMENT OF HOMELANL SECURITY,

Respondents

On Petition for a Writ of Certiorari to

the United States District Court for the

Western District of Texas

PETITION FOR A WRIT OF CERTIORARI

THOMAS W. MERRILL ANDREW J. PINCUS

Scott L. SHUCHART Counsel of Record

Yale Law School CHARLES ROTHFELD

Supreme Court Clinic ELIZABETH G. OYER

127 Wall Street Mayer Brown LLP

New Haven, CT' 06511 1909 K Street, NW

(203) 432-4800 Washington, DC 20006

(202) 263-3000

Counsel for Petitioners

Sree ORS RE HR SO RRNA TS RGRAY © SEN SMO, RS SERENE 8 POE ANE

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

QUESTIONS PRESENTED

On April 3, 2008, the Secretary of Homeland Se-

curity waived the application ef thirty-seven federal

statutes to activities relating to construction of the

border fence along nearly 500 miles of the United

States’ border with Mexico. The Secretary’s orders

also purported to preempt “state, or other laws, regu-

lations and legal requirements of, deriving from, or

related to the subject of” the waived federal statutes.

The Secretary claimed authority for these orders

under Section 102(c) of the Illegal Immigration Re-

form and Immigrant Responsibility Act, as amended,

which grants the Secretary “authority to waive all

legal requirements such Secretary, in such Secre-

tary’s sole discretion, determines necessary to ensure

‘expeditious construction of the barriers and roads”

along the United States’ border. 8 U.S.C. § 1103 note.

Section 102(c) forecloses judicial review of the Secre-

tary’s waivers except for actions brought in federal

district court alleging violations of the Constitution

of the United States. A district court’s decision may

be reviewed only through a petition for writ of certio-

rari to this Court. The questions presented are:

1. Whether the grant of authority to the Secre-

tary of Homeland Security to “waive all legal re-

quirements” necessary to ensure rapid construction

of a border fence, with no provision for judicial re-

view to test the statutory and factual basis of the

Secretary's waiver orders, is an unconstitutional

delegation of legislative power.

2. Whether a general delegation of authority to

“waive all legal requirements” is sufficient to permit

the Secretary of Homeland Security to declare pre-

empted every state and local law “related to” the

thirty-seven waived federal statutes.

RULE 14.1(b) STATEMENT

Petitioners (plaintiffs below) are County of El

Paso, City of El Paso, El Paso County Water Im-

provement District No. 1, Hudspeth County Conser-

vation and Reclamation District No. 1, Ysleta del Sur

Pueblo, Frontera Audubon Society, Friends of the

Wildlife Corridor, Friends of Laguna Atascosa Na-

tional Wildlife Refuge, and Mark Clark.

Respondents (defendants below) are Michael

Chertoff, Secretary, U.S. Department of Homeland

Security, and the U.S. Department of Homeland Se-

curity.

RULE 29.6 STATEMENT

Frontera Audubon Society, Friends of the Wild-

life Corridor, and Friends of Laguna Atascosa Na-

tional Wildlife Refuge state that none of them has a

parent corporation and no publicly held corporation

owns ten percent or more of the stock of any of the

organizations.

111

TABLE OF CONTENTS

Page

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CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED ....... 1

Se | 5 MEE SCCEM Cry Ue) ALR RSE TIO CaCI RENO NOT 4

A. Statutory Background. ...........:..sccccssseesseces 6

B. Proceedings Below. ..........00.....0-0000 ERT 7

REASONS FOR GRANTING THE PETITION...... 10

[. The Court Should Grant Certiorari To

Resolve The Important Question, Which

Has Divided The Lower Courts, Whether

Broad Delegations Of Discretionary

Authority That Impinge On Private Rights

Must Be Subject To Judicial Review. ................ 11

A. This Court’s Decisions Recognize

That Judicial Review Is Essential To

Uphold A Delegation In This Con-

I secs ciccsasenaicacs ccs teoirenacanuataaresaotiehesabncienin 12

B. “he Lower Courts Have Reached

Conflicting Conclusions Regarding

The Necessity Of Judicial] Review. .......... 15

TABLE OF CONTENTS—continued

Page

C. The Preclusion Of Judicial Review

Makes The Secretary The Sole Arbi-

ter Of All Issues Relating To The

Scope Of His Waiver Authority, Ef-

fectively Nullifying Any Limitations

Imposed By Congress. ..........2......2:220cceeeeeee 18

II. The Court Should Grant Review To

Resolve The Important Question Whether

A Clear And Unequivocal Grant Of

Authority Is Required To Permit An

Executive Branch Agency To Preempt

State Law On Its Own Authority. .................0 21

II]. The Questions Presented Are Important. ......... 29

ee aaa Soe os cuca 34

APPENDIX A: Department of Homeland

Security, Office of the Secretary,

Determination Pursuant to Section 102 of

the legal Immigration Reform and

Immigrant Responsibility Act of 1996, as

Amended, 73 Fed. Reg. 19077 (Apr. 8,

APPENDIX B: Department of Homeland

Security, Office of the Secretary,

Determination Pursuant to Section 102 of

the Dlegal Immigration Reform and

Immigrant Responsibility Act of 1996, as

Amended, 73 Fed. Reg. 19078 (Apr. 8,

2008) 7a

ee ae |

TABLE OF CONTENTS—continued

Page

APPENDIX C: Memorandum Opinion and

Order Denying Plaintifis’ Application for

Prelimimary Injunction. ................0..06.00...-..00+-- 18a

APPENDIX D: Order Granting Defendants’

PE Fe IN oases svcsnnavenedecnsscerncienvseunstene 49a

TABLE OF AUTHORITIES

Page(s)

CASES

Alden v. Maine, 527 U.S. 706 (1999)........0..cc eee 22

Amalgamated Meat Cutters v. Connally,

337 F. Supp. 737 (D.D.C. 197) .cccccscccseseeeeeeseees 16

American Power & Light Co. v. SEC,

329 U.S. 90 (1946)....-ccccccccccscseseseeeeeeeveeee: 12, 13, 18

Association of International Automobile

Manufacturers v. Commissioner,

me PS St At)! Ee eee 26

Clinton v. New York, 524 U.S. 417 (1998) .............. 30

Colorado Public Utilities Commission v.

Harmon, 951 F.2d 1571 (10th Cir. 1991)........... 26

CSX Transp., Inc. v. Easterwood,

Be Be, Me ee orcs vencncessvsn vnerscernardesecasevevesess 28

Defenders of Wildlife v. Chertoff, 527 F. Supp.

2d 119 (D.D.C. 2007), cert. denied, 128

Sit. 2962 Gune 23, 2008) ..................... 12, 31, 32

Fellner v. Tri-Union Seafoods, L.L.C.,

eR eS ee 2 26

Fidelity Federal Savings & Loan Association

v. de la Cuesta, 458 U.S. 141 (1982) 20.0.0... 27, 28

Florida Lime & Avocado Growers, Inc. v. Paul,

te ecco cevaccvnewcssnerscesecccivevessservess 27

Geier v. American Honda Motor Co.,

oo a | y At |

Green Mountain Railroad Corp. v. Vermont,

a gee Be PO 8 es 26

Hines v. Davidowitz, 312 U.S. 52 (1941)................. a7

vil

TABLE OF AUTHORITIES—continued

Page(s)

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

Be et csc tu sevccpas¥evbnrceccuviiesnvvcavon vues 13

Jones v. Rath Packing Co.,

Ne a gs ka ssa n nao vadscdacdetinleitnsyeeuies 22

Loutsiana Public Service Commission v. FCC,

re vases eo dcesevoreeencsicsrlavs eemans evens 23

Massachusetts v. U.S. Department of

Transportation,

oe gee eC ke Oe eae: ) ee 26

Mistretta v. United Staies,

oe ee 8 I ey arsed kiiesvensvexevecsctuwecdnens) 13, 14

Morales v. Trans World Airlines, Inc..,

BE ee oa aan hs phen evievescatvaestrnkannevecdaneets 28

Printz v. United States,

ee Bee ee oc vo cowed cvvcd concen dcdeetececn¥an 22

Rice v. Santa Fe Elevator Corp..,

ee a ik ili citiseceeriom donnie 22

Skinner v. Mid-America Pipeline Co.,

a ee eo ssn A iniecd edewed eadanategnens 13

South Dakota v. Department of Interior,

69 F.3d 878 (8th Cir. 1995), vacated, 519

Fe ee eI ais nc ehicek at cdi vena ckicadavecaeoesys 16, 17

State Farm Bank v. Reardon,

SS Be ee Be ee. |.) 26

Touby v. United States,

SS SS EO... 1) aT LS. 34. 15,77

vill

TABLE OF AUTHORITIES—continued

Page(s)

United States v. Bozarov,

974 F.2d 1037 Ct Cit. 19D kiki ccecrccecinn 15

United States v. Widdowson,

916 F.2d 587 (10th Cir. 1990), vacated,

502 US. Be) Ce Acs 16. 17

Watters v. Wachovia Bank, N.A.,

127 &. Gb. (0 econ ecseeseoee 25, 26

Whitman v. American Trucking Associations,

631 01.5. 467 (as... eee 9

Wisconsin Public Intervenor v. Mortier,

BOD US. Se Ce ick da ase 22

Yakus v. United States,

321 U.S. 4146 ADD oivnriceeisvridncccd eee 13

CONSTITUTIONS, STATUTES, RULES, AND

REGULATIONS

Constitution of the United States

pe ee en 1,12

Art. V1, €b. 2..ccccumumanuniede eee 22

Aveta. J oicisivicciciaxueevasiecee ee eee 1

Administrative Procedure Act,

5'0.8.C. § GSt of s6a:........... eee 4,6

Balanced Budget and Emergency Deficit

Control Act of 1985,

2US.C. & 901 & Bee ee 30

Bipartisan Campaign Reform Act of 2002,

2 U.S.C. 36 4370 mete ..c....4, See 30

TABLE OF AUTHORITIES—continued

Page(s)

Endangered Species Act,

sD BOL OL BOD. civesscccescesssssecvenssnsvoeses 6, 10

Federal Grant & Cooperative Agreement Act,

31 U.S.C. §§ 6303-6308 .......cccccccessecssessessseeesseeveee 5

Federal Land Policy Management Act,

EE OUR G0 WOME oo. oc.cseveveesscdssesscessveseecorseeys 4

National Environmental Policy Act,

PAs. © GAT OF BOP. ......00000cccesescscocssecesceness 6, 10

Religious Freedom Restoration Act,

Pees, BE APPUIO PROCS .0..000ccscescncccsccesccnscsnccssenees 5

Trans-Alaskan Pipeline Act,

NN assoc cevesknsceskscsevsssesouvanveseeynnsvoovwens 30

TE WENN c. sessccossosesssvsssersovevecsvesvonevecesccvesenees OO

rasan hiisvisknsavenendsedenveysorveusea ei 23

ee, © LOOO~GOLS)CADTII)..............0c0ceccensesorscoevesseees 23

Nee csv svelebevuvencdasecnetenieevesexe ae

EE) er 24

acca cise sstdasavonsesesunsssesnvassesscueanneuss 24

as vscndtncvsvsoceasnesansus'eesesnvescueas 24

EE vas cennscnescentssurasveccesesssccnsnseeveavwerssenss MM

MEET, © 91242 (a)............<.c...-c0c.ccecccececssorseossererees 24

Economic Stabilization Act of 1970.................eee. 16

Homeland Security Act of 2002, Pub. L. No.

107-296, § 1511, 116 Stat. 2309 .....ecccecceceeeeen 7

TABLE OF AUTHORITIES—continued

Page(s)

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-

208, div. C, tit. I, 110 Stat. 3009-554, as

SIG cc ciinctsiccnscsbcsiseinseelevaieaupseaaacusions passim

Line Item Veto Act of 1996, Pub. L. No 104-

130, 110 Stat. 1200 (formerly codified at 2

CF Unis. We Es aciasoncianta vice ciaeoanmenavenceeninraaelads 30

REAL ID Act of 2005, Pub. L. No. 109-18, div.

a Wis Bc. he i TE een idesaveinsecereneterss 7, 10, 28

Regulatory Flexibility Act, Pub. L. No. 96-354,

Oe SE eee Reicha cxcesvacsaaccaneecdesuanseiunuantes 23

72 Fed. Reg. 60870 (Oct. 26, 2007).................ccscccsees. 8

73 Fed. Reg. 19077 (Apr. 8, 2008) .........................3, 8

73 Fed. Reg. 19078 (Apr. 8, 2008) ..........00000.0000.. 3, 4, 8

MISCELLANEOUS

California Coastal Commission, W 13a Revised

Staff Report and Recommendation on

Consistency Determination 14 (CD-063-03)

(2003), available at http://www.coastal.ca.gov/

CO Ee RE vs csessigvivcncesccectstnesecennvinsciurecir iain 10

Kenneth Starr et al., The Law of Preemption:

A Report of the Appellate Judges Confer-

ence, American Bar Association 40 (1991)......... 25

TABLE OF AUTHORITIES—continued

Page(s)

U.S. Customs and Border Protection, CBP

Offers Landowners Additional Consultation

on Border Fence, http://www.cbp.gov/xp/

cgov/newsroom/ news_releases/nov_2008/

Re ° 5 I Le eee TEE

PETITION FOR A WRIT OF CERTIORARI

Petitioners, County of E] Paso, City of El Paso, El

Paso County Water Improvement District No. 1,

Hudspeth County Conservation and Reclamation

District No. 1, Ysleta Del Sur Pueblo, Frontera

Audubon Society, Friends of the Wildlife Corridor,

Friends of Laguna Atascosa National Wildlife Ref-

uge, and Mark Clark, respectfully petition for a writ

of certiorari to review the judgment of the District

Court for the Western District of Texas in this case.

OPINIONS BELOW

The opinion of the district court (App., infra, 49a-

55a) dismissing petitioners’ complaint is not re-

ported. The opinion of the district court (App., infra,

18a-48a) denying petitioners’ motion for preliminary

injunction is not reported.

JURISDICTION

The judgment of the district court was entered on

September 11, 2008 (App, infra, 55a). “his Court's

jurisdiction rests on Section 102(c)(2)(C) of the Illegal

Immigration Reform and Immigrant Responsibility

Act of 1996, as amended, 8 U.S.C. § 1103 note.

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

1. U.S. Const. Art. I, § 1 provides in relevant

part:

All legislative Powers herein granted

shall be vested in a Congress of the

United States, which shall consist of

a Senate and House of Representa-

tives.

2. U.S. Const. Amend. X provides:

The powers not delegated to the

United States by the Constitution,

nor prohibited by it to the States, are

reserved to the States respectively, or

to the people.

3. Section 102 of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996, as

amended, 8 U.S.C. § 1103 note, provides in relevant

part:

(a) In general.—The Secretary of

Homeland Security shall take such

actions as may be necessary to instal!

additional physical barriers and

roads (including the removal of ob-

stacles to detection of illegal en-

trants) in the vicinity of the United

States border to deter illegal cross-

ings in areas of high illegal entry into

the United States.

«§ & &

(1) In general.—Notwithstanding any

other provision of law, the Secretary

of Homeland Security shall have the

authority to waive all legal require-

ments such Secretary, in such Secre-

tarys sole discretion, determines

necessary to ensure expeditious con-

struction of the harriers and roads

under this section. Any such decision

by the Secretary shall be effective

upon being published in the Federal

+ 2

(2) Federal court review.—

(A) In general.—The district courts of

the United States shall have exclu-

sive jurisdiction to hear all causes or

claims arising from any action under-

taken, or any decision made, by the

Secretary of Homeland Security pur-

suant to paragraph (1). A cause of ac-

tion or claim may only be brought al-

leging a violation of the Constitution

of the United States. The court shall

not have jurisdiction to hear any

claim not specified in this subpara-

graph.

(B) Time for filing of complaint.—Any

cause or claim brought pursuant to

subparagraph (A) shall be filed not

later than 60 days after the date of

the action or decision made by the

Secretary of Homeland Security. A

claim shall be barred unless it is filed

within the time specified.

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.

4. The Secretary’s Determination Pursuant to

Section 102 of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, as amended,

73 Fed. Reg. 19077 (Apr. 8, 2008), is reprinted at

App., infra, la.

5. The Secretary's Determination Pursuant to

Section 102 of the Hlegal Immigration Reform and

Immigrant Responsibility Act of 1996, as amended,

73 Fed. Reg. 19078 (Apr. 8, 2008), is reprinted at

App., infra, 7a.

STATEMENT

Section 102(c) of the legal Immigration Reform

and Immigrant Responsibility Act (IIRIRA) delegates

sweeping authority to a single unelected official,

authorizing the Secretary of Homeland Security “to

waive all legal requirements such Secretary, in such

Secretary's sole discretion, determines necessary to

ensure expeditious construction” of barriers and

roads in the vicinity of the Nation’s international

border. IIRIRA § 102(c)(1), as amended, 8 U.S.C.

§ 1103 note (“Section 102(c)’).

ITRIRA’s waiver provision is unprecedented. Not

only does the Secretary retain “sole discretion” to de-

termine when a waiver 1s appropriate, but the Act

imposes no restrictions on the type of “legal require-

ment” he may waive. Capping off the extraordinary

teatures of this statutory scheme, the Secretary’s ex-

ercise of discretion is immune from judicial review to

ensure comphance with the statutory standard and

other administrative law requirements. Challenges

to the Secretary’s actions under Section 102(c) “may

only be brought alleging a_ violation of the

Constitution of the United States.” Section

102(c)(2)(A).

In the orders at issue here, the Secretary has

taken full advantage of this lmitless and unre-

viewable delegation of power, purporting to waive

not only a host of federal environmental, historic,

and cultural preservation laws, but also basic

framework laws hke the Administrative Procedure

Act (APA), 5 U.S.C. § 551 et seq.; the Federal Land

Policy and Management Act, 43 U.S.C. § 1701 et seq.:

—

the Religious Freedom Restoration Act, 42 U.S.C.

§ 2000bb note; and the Federal Grant and Coopera-

tive Agreement Act of 1977, 31 U.S.C. §§ 6303-6308 —

some thirty-seven federal laws in all.

Moreover, the Secretary purported to “waive” all

state and other laws “deriving from, or related to the

subject of’ these waived federal laws, without further

identifying which state or “other laws” he intended to

waive. The Secretary further “reserve{d] the author-

ity to make further waivers from time to time as [he]

may determine tc be necessary.” App., infra, 5a, 17a.

The effect is to render the considerable physical areca

surrounding the border fence a legal no-man’s land,

subject to the unfettered discretion of the Secretary.

The Secretary’s orders provide no explanation for

the selection of statutes waived, no reasons why the

statutory standard is satisfied, and no guidance con-

cerning which local and state laws are “deriv[ed]

from or relate[d] to” the federal statutes he has sus-

pended. App., infra, 4a, 15a. The orders are unclear

as to whether the Secretary has merely exempted

himself from the laws’ effects or whether the waived

laws no longer apply to other persons or government

entities engaged in activities within the zone of the

waivers. Neither do the waivers indicate whether the

affected laws are waived only during the period of

construction or are waived indefinitely (as ongoing

“upkeep” of fences, roads, supporting elements, and

the like continues). Finally, although the orders

identify by mileposts the length of the area affected,

they do not specify the width of the area covered by

the waivers. App., infra, 4a, 15a.

Section 102(c)’s extraordinarily broad delegation

of power and the vagueness of the Secretary's orders

would be less objectionable if aggrieved parties were

able to seek judicial review of the Secretary’s actions.

Ordinarily such review, if not otherwise provided for

by statute, would be available under Section 704 of

the APA, 5 U.S.C. § 704. The Secretary, however, has

waived the APA. App., infra, 5a, 16a. Even if he had

not, Section 102(c) categorically bars claims challeng-

ing the Secretary’s compliance with the statute’s

substantive requirements, including the requirement

that a waiver be “necessary to ensure expeditious

construction of the barriers and roads” as authorized

by the Section, and claims seeking interpretation or

clarification of the Secretary’s orders. It also pre-

cludes litigation in the state courts and all interme-

diate federal appellate review related to the Secre-

tary’s orders. The result is that Section 102(c) leaves

aggrieved parties with no means of ensuring that the

Secretary's waiver authority is exercised in accor-

dance with the statute’s prescribed limits, except by

challenging the constitutional validity of the grant of

authority itself. This Court is the only appellate

court with jurisdiction to resolve that claim.

A. Statutory Background

In 1996, Congress directed the Attorney General

to construct barriers and roads along the U.S. inter-

national border to deter illegal crossings. I[RIRA,

Pub. L. No. 104-208, div. C, tit. I, § 102(a), 110 Stat.

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

note). As originally enacted, IIRIRA provided that, if

and to the extent the Attorney General determined it

was necessary, the Endangered Species Act of 1973

(ESA), 16 U.S.C. § 1531 et seq., and the National En-

vironmental Policy Act of 1969 (NEPA), 42 U.S.C.

§ 4321 ef seq., were waived “to ensure expeditious

construction of the barriers and roads” along the

border. § 102(c), 110 Stat. at 3009-555.

The Act included no special review provision and

did not preclude judicial review of the Attorney Gen-

eral’s determinations. In 2002, Congress transferred

oversight of the border fence project, along with

many of the Attorney General’s other responsibili-

ties, to the newly created Secretary of Homeland Se-

curity. Homeland Security Act of 2002, Pub. L. No.

107-296, §§ 1511, 1517, 116 Stat. 2309, 2311.

Three years later, Congress enacted the REAL

ID Act of 2005, Pub. L. No. 109-13, div. B, tit. I, 119

Stat. 302 (codified at 8 U.S.C. § 1103 note), as part of

the Emergency Supplemental Appropriations Act for

Defense, the Global War on Terror, and Tsunami Re-

hef, 2005. That Act greatly expanded the scope of the

Secretary's waiver authority to include not merely

ESA and NEPA but “all legal requirements,” trans-

ferring the decision regarding the legal requirements

subject to waiver from Congress to the Secretary “in

[his] sole discretion.” REAL ID Act § 102(c)(1).

The Act also radically restricted the scope of ju-

dicial review of the Secretary’s waiver decisions. The

district courts are now permitted to hear only “[a]

cause of action or claim * * * alleging a violation of

the Constitution of the United States.” Id.

§ 102(c)(2)(A). Further, “[a] claim shall be barred un-

less it is filed within” sixty days of the Secretary’s

decision. Id. § 102(c)(2)(B). A ruling by a district

court under this provision may only be reviewed

“upon petition for a writ of certiorari to the Supreme

Court of the United States.” 7d. § 102(c)(2)(C).

B. Proceedings Below

On April 3, 2008, Secretary of Homeland Secu-

rity Michael Chertoff, invoking his authority under

Section 102(c), issued two orders waiving “all federal,

state, or other laws, regulations and legal require-

ments of, deriving from, or related to the subject of”

more than three dozen federal statutes. 73 Fed. Reg.

19077 (Apr. 8, 2008) (Hidalgo County waiver) (re-

printed at App., infra, 1a); 73 Fed. Reg. 19078 (Apr.

8, 2008) (multistate waiver) (reprinted at App., infra,

7a). The two orders’ combined abrogation of existing

federal and state statutory rights covers nearly 500

miles of territory along the U.S.-Mexico border, an

area crossing through four states. They are the

fourth and fifth waivers, respectively, that the Secre-

tary has issued under the ITRIRA authority and en-

compass nearly twice as many federal statutes as the

largest previous waiver. 72 Fed. Reg. 60870 (Oct. 26,

2007) (waiving twenty federal statutes).

Petitioners — local government entities, an

American Indian tribe, environmental groups, and

an individual Texas resident — filed suit on June 2,

2008, in United States District Court for the Western

District of Texas, challenging the constitutionality of

the broad delegation of authority to the Secretary to

waive any laws that he deemed impediments to rapid

construction of the border fence. Petitioners argued

(1) that granting the Secretary unlimited waiver

authority while precluding judicial review for com-

pliance with statutory requirements constitutes an

unconstitutional delegation of legislative authority,

and (2) Section 102(c) does not contain a sufficiently

clear delegation to permit the Secretary to declare

state and local law preempted on his own authority.

In affidavits filed in the district court, petitioners

averred that they face a variety of serious potential

harms as a result of the Secretary’s orders. For ex-

ample, the Secretary's waivers of federal and state

law compromise the Ysleta del Sur Pueblo Indian

tribe’s ability to protect sacred grounds along the Rio

Grande that have been used for more than 300 years

to perform religious and cultural ceremonies. Simi-

larly, the waivers may jeopardize the ability of the El

Paso County Water Improvement District No. 1 and

the Hudspeth County Conservation and Reclamation

District No. 1 to fulfill their statutory mandates to

deliver water to the City of El Paso and to thousands

of farmers throughout El Paso and Hudspeth Coun-

ties,

The district court denied petitioners’ motion for

a preliminary injunction and thereafter granted re-

spondents’ motion to dismiss. The court found that

the statute’s preclusion of judicial review did not

render the broad delegation of authority unconstitu-

tional. App., infra, 30a-3la. Referring to this Court’s

decision in Whitman vy. American Trucking Associa-

tions, 531 U.S. 457 (2001), the district court found

that, no matter how sweeping the delegation or neg-

ligible the judicial review, the Constitution requires

only that “Congress * * * provide an intelligible prin-

ciple to guide the exercise of delegated authority.”

App., infra, 30a. The court concluded that petitioners

had not “presented any cases 1n which the Supreme

Court struck down a statute explicitly for lack of ju-

dicial review in the intelligible principle analysis,”

that “other courts have held the Supreme Court does

not require judicial review in the intelligible princi-

ple analysis,” and that “the Waiver Legislation does

not preclude judicial review entirely because parties

can petition for certiorari to the Supreme Court.”

App., infra, 32a.

Turning to petitioners’ federalism arguments,

the district court acknowledged that this Court has

held Congress must clearly delegate authority before

an executive official can preempt state law. But the

district court deferred to the Secretary’s argument

that Section 102(c) satisfies the clear statement re-

quirement, because the statute “clearly manifests

congressional intent to nullify other laws to the ex-

tent necessary to expeditiously construct the border

fence.” App., infra, 40a. Alternatively, the district

court concluded that the Secretary’s declaration of

preemption could be upheld as a species of conflict

preemption, since the Secretary “has only waived

state and local laws which interfere with Congress’s

purpose to construct the border barrier.” App., infra,

40a. The court did not advert to the fact that, be-

cause Section 102(c) precludes all judicial review

sixty days after the issuance of a waiver order, the

determination of the scope of this “conflict preemp-

tion” will le in the unreviewable discretion of the

Secretary of Homeland Security.

REASONS FOR GRANTING THE PETITION

When Congress enacted the original version of

the provision at. issue here in 1996, Congress itself

determined that two statutes — the Endangered Spe-

cies Act of 1973 and the National Environmental Pol-

icy Act of 1969 — would be suspended if the Attorney

General determined such suspension was necessary

to ensure expeditious construction of a border fence.

§ 102(c), 110 Stat. 3009-555. The Act contained no

limits on judicial review of the Attorney General’s

necessity determinations. ‘he Attorney General un-

dertook construction of the first segment of the bor-

der fence without ever deeming it “necessary” to give

effect to Congress’s waiver of ESA or NEPA. Cal.

Coastal Comm’n, W /3a Revised Staff Report and

Recommendation on Consistency Determination 14

(CD-063-03) (2003), available at

http://www.coastal.ca.gov/ced/W 1 3a-2-2004. pdf.

With the 2005 REAL ID Act amendments, Con-

gress adopted a substantially different scheme, one

that impermissibly delegated legislative authority to

the Secretary. Rather than specifying particular fed-

eral laws that would be waived upon an administra-

tive determination of necessity, subject to the ordi-

nary testing through judicial review, the revised

Section 102(c) confers on the Secretary the unfet-

tered choice of what laws to waive. And although the

statute preserves the requirement that the Secre-

tary’s waiver authority be exercised only when “nec-

essary, the Act’s preclusion of judicial review to en-

force this standard renders meaningless what might

otherwise be an “intelligible principle.” The Act thus

permits the Secretary to eliminate the constraints

imposed by any federal law, on the Secretary’s mere

assertion that such abrogation is “necessary” to as-

sure rapid construction of the fence.

In addition, the Secretary’s interpretation of the

Act as authorizing administrative preemption of

state and local laws lacks support in the text of the

statute. If allowed to stand, the Secretary’s order

would constitute an unprecedented expansion of

agency authority to preempt state and local law

without clear congressional authority — and without

any oversight by any court. This Court’s intervention

is essential to protect state and local legislative

authority from unreviewable federal administrative

preemption.

I. The Court Should Grant Certiorari To Re-

solve The Important Question, Which Has

Divided The Lower Courts, Whether Broad

Delegations Of Discretionary Authority

That Impinge On Private Rights Must Be

Subject To Judicial Review.

Although this Court has repeatedly pointed to

the availability of judicial review in rejecting consti-

tutional challenges to congressional delegations of

authority, the lower courts are divided as to whether

judicial review is essential to the constitutionality of

broad delegations of legislative power to agencies.

This Court should grant review to resolve this impor-

tant question.!

A. This Court’s Decisions Recognize That

Judicial Review Is Essential To Up-

hold A Delegation In This Context.

“The Constitution provides that ‘[a]ll legislative

Powers herein granted shall be vested in a Congress

of the United States.’ From this language the Court

has derived the nondelegation doctrine: that Con-

gress may not constitutionally delegate its legislative

power to another branch of Government.” Touby v.

United States, 500 U.S. 160, 164-65 (1991) (quoting

U.S. Const., Art. I, § 1) (internal citations omitted).

Notwithstanding this fundamental constitu-

tional limitation, there is little doubt that Congress

can delegate power to executive-branch agencies in

broad terms. As the Court noted in American Power

& Light Co. v. SEC, “judicial approval accorded these

‘broad’ standards for administrative action is a re-

flection of the necessities of modern legislation deal-

ing with complex economic and social problems.” 329

U.S. 90, 105 (1946). The settled understanding that

has emerged is that a delegation of discretionary

power to the Executive Branch is permissible so long

as Congress “lay[s] down by legislative act an intelli-

gible principle to which the person or body author-

| As discussed below (at 31-32), the issue is presented more

clearly in this case, and with much greater practical conse

quences, than it was in Defenders of Wildlife v. Chertoff, 128

S.Ct. 2962 (June 23, 2008)

ized to [exercise the delegated authority] is directed

to conform.” Mistretta v. United States, 488 U.S. 361,

372 (1989) (quoting J.W. Hampton, Jr. & Co. v.

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

Yet where the exercise of broad delegated power

threatens private rights, the availability of judicial

review provides a crucial safeguard against the pos-

sible abuse by the executive of a broad delegation of

power. Starting with its decision in Yakus v. United

States, 321 U.S. 414 (1944), this Court has repeat-

edly underscored the importance of judicial review in

sustaining the constitutionality of broad legislative

delegations. The very purpose of requiring that Con-

gress lay down an “intelligible principle,” the Court

explained, is to be able “in a proper proceeding to as-

certain whether the will of Congress had been

obeyed.” Jd. at 426.

The Court elaborated on this understanding in

American Power & Light Co.: It is “constitutionally

sufficient,” the Court explained, “if Congress clearly

delineates the general policy, the public agency

which is to apply it, and the boundaries of this dele-

gated authority. Private rights are protected by access

to the courts to test the application of the policy in the

light of these legislative declarations.” 329 U.S. at

105 (emphasis added).

The Court has reaffirmed this commitment to the

importance of judicial review in permitting broad

delegations in a number of recent cases. See, e.g.,

Mistrettu, 488 U.S. at 379 (reiterating that a permis-

sible intelligible principle may be tested “in a proper

proceeding” (quoting Yakus, 321 U.S. at 425-426));

Skinner v. Mid-Am. Pipeline Co., 490 U.S. 212, 218

(1989) (allowing delegation pursuant to principles ar-

ticulated “such that a court could ‘ascertain whether

the will of Congress has been obeyed” (quoting Mis-

tretta, 488 U.S. at 379)).

The question whether a broad delegation affect-

ing private rights is constitutional in the absence of

judicial review was squarely presented in Touby v.

United States, 500 U.S. 160 (1991). At issue was an

amendment to the Controlled Substances Act that

permitted the Attorney General temporarily to

schedule new “designer drugs” as controlled sub-

stances on an expedited basis. The Act expressly

provided that a decision temporarily to schedule such

a drug was “not subject to judicial review.” Jd. at 168.

The petitioner argued that this feature of the statute

rendered the delegation unconstitutional.

This Court did not dispute that judicial review is

required; it concluded that judicial review was in fact

available under the Act. Although a pre-enforcement

challenge to a temporary scheduling of a new drug

was foreclosed, an individual facing criminal charges

based on a violation involving a temporarily sched

uled drug was free to bring a challenge to the Attor-

ney General's order by way of a defense to prosecu-

tion. 500 U.S. at 168. This post-enforcement review,

the Court found, was “sufficient to permit a court to

ascertain whether the will of Congress has been

obeyed.” Jd. at 168-169 (citation omitted). T'wo con-

curring Justices would have made it explicit that

“[wle must * * * read the Controlled Substances Act

as preserving judicial review of a temporary schedul-

ing order in the course of a criminal prosecution in

order to save the Act’s delegation of lawmaking

power from unconstitutionality.” /d. at 170 (Mar-

shall, J., joined by Blackmun, J.).

B. The Lower Courts Have Reached Con-

flicting Conclusions Regarding The

Necessity Of Judicial Review.

Both before and after Touby, lower federal courts

have reached conflicting conclusions regarding

whether judicial review is a necessary condition for

sustaining a broad delegation of discretionary au-

thority that impinges on private mghts. This Court

should grant review to resolve the persistent conflict

among the lower federal courts on this important

and far-reaching question.

The district court’s decision here, along with each

of the other district court decisions considering the

constitutionality of the waiver authority delegated by

Section 102(c), is consistent with a decision of the

Ninth Circuit, United States v. Bozarov, 974 F.2d

1037 (9th Cir. 1992). Bozarov involved a_non-

delegation challenge to the Export Administration

Act. Rejecting the appellee’s contention that the ab-

sence of judicial review rendered that Act unconsti-

tutional, the court determined that “the purpose of

an intelligible principle is simply to channel the dis-

cretion of the executive and to permit Congress to de-

termine whether its will is being obeyed.” 7d. at 1041

(emphasis added).

The Ninth Circuit is not the only Court of Ap-

peals ta confront this question, but it is the only one

to conclude, as the court below did, that judicial re-

view is dispensable in the intelligible principle

analysis. Hence the decision below is at odds with

decisions of the Eighth and Tenth Circuits, and a

prominent three-judge court decision from the Dis-

trict of Columbia, all of which appreciated that a

permissible intelligible principle for the exercise of

delegated power must be susceptible of analysis by a

court. See South Dakota v. Dep't of Interior, 69 F.3d

878 (8th Cir. 1995), vacated, 519 U.S. 919 (1996);

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

1990), vacated, 502 U.S. 801 (1991); Amalgamated

Meat Cutters v. Connally, 337 F. Supp. 737, (D.D.C.

1971).

In Amalgamated Meat Cutters v. Connally, a

three-judge district court panel upheld the Economic

Stabilization Act of 1970 against a non-delegation

challenge. Central to the decision was the court’s

conclusion that decisions taken under the Act were

subject to judicial review under sections 701-706 of

the APA. 337 F. Supp. at 760. Speaking for the court,

Judge Leventhal explained that “[t]he safeguarding

of meaningful judicial review is one of the primary

functions of the doctrine prohibiting undue delega-

tion of legislative powers.” Id. at 759.

In South Dakota v. Department of Interior, the

Eighth Circuit struck down as unconstitutional a

section of the Indian Reorganization Act authorizing

the Secretary of the Interior to acquire land in trust

for Indians because the statute’s preclusion of judi-

cial review failed to “ensure[] that courts charged

with reviewing the exercise of delegated discretion

will be able to test that exercise against ascertain-

able standards.” 69 F.3d at 885. The court deter-

mined that judicial review was an essential criterion

of the non-delegation doctrine and “derivative” of the

requirement that Congress provide an intelligible

principle. /bid.

Following the Eighth Circuit’s decision, the Sec-

retary of the Interior promulgated a new regulation

that provided for judicial review. The Solicitor Gen-

eral sought certiorari and urged this Court to vacate

the Eighth Circuit's decision and remand for recon-

sideration in light of the new regulation, which this

Court did. Dep’t of Interior v. South Dakota, 519 U.S.

919 (1996). Far from undermining the force of the

Eighth Circuit’s decision, the procedural history of

South Dakota reveals that the Interior Department

and the Solicitor General regarded it as, at the very

least, a serious question whether a broad delegation

without judicial review would be upheld as constitu-

tional.

The Tenth Circuit, in United States v. Widdow-

son, likewise struck down a legislative delegation be-

cause it failed to provide for judicial review. 916 F.2d

at 59. Widdowson presented the same question this

Court confronted in Touby, and the Tenth Circuit

concluded that the preclusion of judicial review of

temporarily scheduled designer drugs rendered the

statute unconstitutional. Jbid. This Court vacated

the opinion and remanded the case in light of Touby,

which found that the act at issue did provide ade-

quate judicial review of the Attorney General’s tem-

porary scheduling orders. United States v. Widdow-

son, 502 U.S. 801, 801 (1991); see Touby, 500 U.S. at

168-170. Again, the Court’s action did not undermine

the reasoning of the Tenth Circuit, but indicated only

that the serious constitutional question should have

been avoided.

In this case, the question cannot be avoided.

Congress has provided that the district court shal]

have “exclusive jurisdiction to hear all causes or

claims arising from any action undertaken” pursuant

to the waiver authority, and that the only claims

that may be brought are those “alleging a violation of

the Constitution of the United States.” Section

102(c)(2). Thus, claims challenging the statutory or

factual basis of waiver decisions, or seeking clarifica-

tion of the many uncertainties raised by the cryptic

language of the waiver orders, are expressly pre-

cluded. In addition, the Secretary has waived the

APA. The only way petitioners can obtain judicial re-

view is by securing a ruling from this Court that the

preclusion of review in Section 102(c)(2) is unconsti-

tutional.

C. The Preclusion Of Judicial Review

Makes The Secretary The Sole Arbiter

Of All Issues Relating To The Scope Of

His Waiver Authority, Effectively Nul-

lifying Any Limitations Imposed By

Congress.

Judicial review, as this court explained in

American Power, is of vital importance to ensure that

executive branch officials adhere to the boundaries of

their delegated authority. 329 U.S. at 105-106. The

orders at issue in this case illustrate the importance

of this protection. The Secretary did not merely

waive more than three dozen federal statutes — he

also purported to interpret the statutory language,

defining “construction” to include, among other

things, “upkeep of fences, roads, supporting elements,

drainage, erosion controls, safety features, surveil-

lance, communication, and detection equipment of all

types, radar and radio towers, and lighting.” App.,

infra, 4a, 15a (emphasis added). This interpretation

is seemingly at odds with the statute’s plain com-

mand that the Secretary exercise his waiver author-

ity only where “necessary to ensure expeditious con-

struction” — not “upkeep” — of the border fence.

Section 102(c)(1) (emphasis added). Given Section

102(c)’s preclusion of judicial review for all but con-

stitutional questions, however, there is no way ag-

grieved parties can challenge the Secretary’s expan-

sive interpretation of his own power. The combina-

tion of a broad delegation and the preclusion of re-

view permits the Secretary to extend the waivers’

duration indefinitely.

The uncertainty surrounding the duration of the

waivers is not the only ambiguity in the Secretary’s

orders. It is also unclear whether the Secretary was

exempting only himself from compliance with vari-

ous federal, state, and local laws, or whether he was

declaring all persons and governmental entities ex-

empt from these legal requirements. Disputes may

well arise in the future about this issue. Likewise, it

is unclear how wide a swathe of land is covered by

the orders. Under the terms of the statute, the only

legal authority capable of resolving these and other

possibly unforeseeable disputes is the Secretary him-

self. No state or local government body or private

citizen will have any recourse to any court if the Sec-

retary fails to resolve the dispute, or does so in a way

the aggrieved party regards as unlawful.

In addition, as we discuss more fully in Section

II, infra, in each of the two orders at issue here the

Secretary also accorded his actions preemptive force.

This Court has never permitted an executive agency,

pursuant to a vague and general delegation of regu-

latory power, to preempt state law on its own author-

itv. Yet the preclusion of review strips aggrieved par-

ties of any means of challenging future “interpreta-

tions” by the Secretary of the scope of his declaration

of preemptio::. The statute in effect allows the Secre-

tary to determine the scope of his powers vis-a-vis

those of state and local governments, without any

judicial check.

The potential impairment of private rights by the

Secretary's orders is further compounded by Section

102(c)’s inordinately short statute of limitations.

While the statute purports to permit the district

courts to hear “claim[s] * * * alleging a violation of

the Constitution,” such actions must be filed within

sixty days of the date of the Secretary’s waiver order

— not sixty days from the infliction of any harm (even

of constitutional stature) caused thereby. Section

102(c)(2)(A). And, as discussed below, Section II, in-

fra, the district court’s decision means the Secretary

need not provide any notice of his abrogation of state

and local law. Absent judicial review, the Secretary’s

ambiguous preemption of unenumerated state and

local laws “of, deriving from, or related to the subject

of’ the federal statutes he has waived confers upon

him the otherwise judicial function of determining

whether and when state laws have been displaced by

his actions once the sixty day clock has run. App., in-

fra, 4a, 15a.

Recognizing a right to judicial review where

broad legislative delegations impinge on _ private

rights would not mean that all executive action

woulc be subject to judicial review. Petitioners ac-

knowledged in the court below that judicial review of

agency action may be unavailable in circumstances

when the “delegated authority falls squarely within

the independent authority of the Executive and thus

does not require an ‘intelligible principle.” App., in-

fra, 28a-29a. Delegations directly to the President,

the exercise of prosecutorial discretion, allocations of

lump-sum appropriations, and agency determina-

tions that affect only public, as opposed to private,

rights comprise narrow but well-recognized excep-

tions to the general presumption of reviewability.

The Secretary’s waiver authority falls well out-

side any of these areas. Section 102(c) delegates

walver authority directly to the Secretary. not to the

President. The decision to abrogate federal, state,

and local law is scarcely analogous to core executive

functions like prosecutorial discretion or budgeting.

And in this case, the Secretary’s actions may affect

private, as well as public, mghts. The record devel-

oped below indicates that the orders, for example,

may interfere with valuable water rights currently

held by municipal water authorities and the rights of

the many private individuals and firms that pur-

chase water from these authorities. They may also

jeopardize access of American Indian tribes to their

traditional burial grounds.

Congress’s delegation of unprecedented and prac-

tically unlimited power to nullify federal and state

law, combined with the elimination of meaningful

judicial review of the Secretary’s actions, leaves the

separation of powers in tatters. This Court’s review

is plainly warranted to end the dispute among the

federal courts over whether broad delegations of dis-

cretionary authority affecting private rights must be

cabined by judicial review, and to clarify that Section

102(c)’s preclusion of judicial review to ensure com-

pliance with the statute’s standard renders Section

102(c) an unconstitutional delegation of legislative

power.

II. The Court Should Grant Review To Resolve

The Important Question Whether A Clear

And Unequivocal Grant Of Authority Is Re-

quired To Permit An Executive Branch

Agency To Preempt State Law On Its Own

Authority.

The Court's intervention is also warranted be-

cause of the grievous blow the district court’s deci-

sion deals to fundamental principles of constitutional

federalism. “|NJumerous constitutional provi-

not only those, like the Tenth Amend-

na“? *?

ment, that speak to the point explicitly” establish a

system of “dual sovereignty,” Printz v. United States,

521 U.S. 898, 923 n.13 (1997) (citation omitted), un-

der which the states “retain ‘a residuary and inviola-

ble sovereignty.” Alden v. Maine, 527 U.S. 706, 714-

715 (1999) (quoting The Federalist No. 39 (James

Madison)). This Court has repeatedly made clear

that state sovereignty is “not to be superseded * * *

unless that was the clear and manifest purpose of

Congress.” Jones v. Rath Packing Co., 430 U.S. 519,

525 (1977) (citing Rice v. Santa Fe Elevator Corp.,

331 U.S. 218, 230 (1947)). Yet there is nothing clear

or manifest in Section 102(c) to suggest that Con-

gress has delegated power to the Secretary to pyre-

empt state or local laws. In fact, Section 102(c) ts si-

lent about preemption. As this Court has made clear,

where preemption is concerned, “mere silence * * *

cannot suffice to establish the ‘clear and manifest

purpose’ to preempt local authority.” Wisconsin Pub.

Intervenor v. Mortier, 501 U.S. 597, 607 (1991) (citing

Rice, 331 U.S. at 230).

Under the Supremacy Clause, federal officials

have no inherent authority to declare state laws pre-

empted. The Supremacy Clause identifies three

sources of federal law as “the supreme law of the

land” and hence as potential sources of preemption of

state law: the Constitution, treaties, and the laws of

the United States which shall be made “in Pursu-

ance” of the Constitution. U.S. Const. Art. VI, cl. 2.

Federal agencies obviously have no authority to

amend the Constitution, enter into treaties, or adopt

supreme “laws” on their own initiative. Consistent

with the Supremacy Clause, only agency action

based on a delegation of authority from Congress and

having the force of law can qualify as a source of pre-

emption. Agency authority to preempt, in other

words, requires a clear and unequivocal delegation of

preemptive authority from Congress.

This Court has recognized as much. In Loutsiana

Public Service Commission v. ¥CC, the Court re-

jected the FCC’s contention that it could preempt

state regulation to “effectuate a federal policy” ab-

sent Congressional authorization. 476 U.S. 355, 374

(1986). The Court, extensively reviewing its preemp-

tion case law, was “both unwilling and unable” to

“srant to the agency the power to override Congress”

by permitting the agency to “confer power on itself.”

Id. at 374-75.

The district court in this case offered for uphold-

ing the Secretary’s assertion of power to preempt

state and local laws. Neither satisfies the constitu-

tional standard.

1. The first justification advanced by the district

court was that Section 102(c) is itself an express pre-

emption clause, that is, an express delegation of

authority to the Secretary to preempt. This claim is

untenable. Section 102(c) authorizes the Secretary to

“waive” laws that might, in his judgment, impede the

expeditious construction of the border fence. Federal

officials are occasionally given authority to waive

federal laws that they are charged with administer-

ing. See, e.g., 5 U.S.C. § 609(e) (empowering Chief

Counsel for Advocacy to waive certain federal rule-

making review requirements of the Regulatory

Flexibility Act, Pub. L. No. 96-354, 94 Stat. 1168

(1980), upon his written finding); 5 U.S.C. § 8137 (al-

lowing Secretary of Labor to waive provisions of fed-

eral law governing payment to non-citizens and non-

residents for work-related injuries); 7 U.S.C. § 1308-

3a(2)(A)(i1) (granting Secretary of Agriculture power

to preserve environmentally sensitive land through

case-by-case waivers of income requirements other-

wise applicable to federal farm assistance). But fed-

eral officials have no authority to “waive” state laws.

State laws can be preempted only when they conflict

with or frustrate federal laws, or when Congress

clearly intends that state laws be displaced.

When Congress delegates authority to an agency

to preempt, it uses precise terms lke “preempt” or

“supersede” or otherwise makes its intent to confer

preemptive authority clear.? Petitioners are aware of

no instance in which a court has construed an au-

thority to “waive” laws to mean or imply an authority

to “preempt.”

2 See, e.g., 49 U.S.C. § 31141(a) (“Preemption after decision. A

State may not enforce a State law or regulation on commercial

motor vehicle safety that the Secretary of Transportation de-

cides under this section may not be enforced.”); 30 U.S.C.

§ 1254(g) (preempting any statute that conflicts with “the pur-

poses and the requirements of this chapter” and permitting the

Secretary of the Interior to “set forth any State law or regula-

tion which is preempted and superseded”); 21 U.S.C. § 360k(a)

& (b) (establishing that “no State or political subdivision of a

State may establish or continue in effect” any requirement with

respect to a medical device, unless the Secretary, “by regulation

promulgated after notice and opportunity for an oral hearing,

exempt[s] * * * a requirement of such State or political subdivi-

sion”). Congress uses similar language in express preemption

clauses more generally. See, e.g., 29 U.S.C. § 1144 (“[T]his chap-

ter shall supersede any and all State laws insofar as they may

now or hereafter relate to any employee benefit plan described

in section 1003(a) of this title * * *.”); 46 U.S.C. § 31307 (“This

chapter supersedes any State statute conferring a lien on a ves-

sel * * *.”); 8 U.S.C. § 1324a (“(2) Preemption. The provisions of

this section preempt any State or local law imposing civil or

criminal sanctions ... upon those who employ, or recruit or re-

fer for a fee for employment, unauthorized aliens.”).

Although the district court found that Section

102(c) “is not ambiguous” in expressing Congress’s

intent to preempt, App., infra, 39a, the court rested

this conclusion not on an analysis of the language

Congress used, but rather on what it characterized

as the Secretary’s “clarifif{cation] that ‘all legal re-

quirements’ includes ‘state or other laws.” App., in-

fra, 39a-40a. In other words, it was the Secretary’s

interpretation of his own authority, not the language

of the statute, that supplied the basis for the court’s

conclusion that “Section 102 clearly manifests con-

gressional intent to nullify [state and] other laws.”

App., infra, 40a.

The district court’s deference to the Secretary’s

interpretation of his own authority was manifestly

inappropriate. Such deference undercuts the very

purpose of the “clear and manifest” requirement of

Rath Packing, 430 U.S. at 525. A clear and manifest

statement of preemptive intent by Congress is re-

quired precisely to protect against agency overreach-

ing that threatens the dual system of government

that “ensures our liberties, representation, diversity,

and effective governance.” Kenneth Starr et al., The

Law of Preemption: A Report of the Appellate Judges

Conference, American Bar Association 40 (1991).

This Court has never permitted an agency such

wide interpretive latitude where preemption is at 1s-

sue. In Watters v. Wachovia Bank, N.A., 127 S. Ct.

1559 (2007), the Court was presented with a request

that it defer to the judgment of the Office of the

Comptroller of the Currency that certain state bank-

ing visitorial regulations were preempted. A majority

of the Court resolved the case without addressing

whether deference to the agency on preemption was

appropriate. /d. at 1572-1573. Three dissenting Jus-

tices stated that whether deference was owed to the

agency was the “most pressing” question presented

by the case. Id. at 1582 (Stevens, J. dissenting,

joined by Roberts, C.J. and Scalia, J.). The dissenters

cautioned that “congressional silence should [not] be

read as a conferral of preemptive authority,’ and

concluded that sanctioning a practice of deferring to

agencies about the scope of their power to preempt

would “easily disrupt the federal-state balance.” Jd.

at 1584.

This case presents, in its most elemental form,

the question left unresolved in Watters: Is an agency

entitled to deference for its determination that state

law is preempted absent a clear and unequivocal

delegation of authority from Congress authorizing it

to preempt? That question is an urgent one, which

has been presented in the lower courts with increas-

ing frequency, and which this Court has not resolved,

but should. See, e.g., State Farm Bank v. Reardon,

539 F.3d 336, 340-341 (6th Cir. 2008) (considering

but avoiding question of deference due to Office of

Thrift Supervision opinion letter regarding preemp-

tion of Ohio banking law); Fellner v. Tri-Union Sea-

foods, L.L.C., 539 F.3d 237, 250-251 (3d. Cir. 2008)

(refusing to defer to FDA letter finding preemption);

Green Mtn. RR Corp. v. Vermont, 404 F.3d 638, 642

n.2 (2d Cir. 2005) (declining to reach issue of

whether deference due to agency preemption deter-

mination); Ass'n of Int Auto. Mfgrs. v. Comm’r, 208

F.d 1, 5-6 (1st Cir. 2000) (denying deference to

agency's view on statute’s preemptive scope); Mas-

sachusetts v. U.S. Dep't of Transp., 93 F.3d 890, 893

(D.C. Cir. 1996) (avoiding question “whether an

agency's interpretation of a statute on the preemp-

tion question is subject to Chevron analysis”); Colo.

Pub. Utils. Comm, v. Harmon, 951 F.2d 1571, 1579

(10th Cir. 1991) (denying deference to agency’s pre-

emption views because “a preemption determination

involves matters of law-an area more within the ex-

pertise of the courts than within the expertise of the

Secretary of Transportation”).

2. The district court’s second rationale for up-

holding the Secretary's authority was nothing more

than an application of the principle that state laws

that conflict with federal law are necessarily pre-

empted. The court reasoned that “even if the Waiver

Legislation does not contain explicit preemptive lan-

guage,” state law is still “conflict preempt{ed]” by the

Secretary’s waivers. App., infra, 40a.

It is of course true that agency action can pre-

empt state law without an express grant of preemp-

tive authority where a court determines that “com-

pliance with both federal and state regulations is a

physical impossibility” Florida Lime & Avocado

Growers, Inc. v. Paul, 373 U.S. 132, 142-148 (1963).

or when a court finds that state law “stands as an

obstacle to the accomplishment and execution of the

full purposes and objectives of Congress,” Hines v.

Davidowitz, 312 U.S. 52, 67 (1941). See, e.g., Geter v.

American Honda Motor Co., 529 U.S. 861 (2000)

(holding that Department of Transportation safety

standards preempted conflicting state tort law);

Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458

U.S. 141 (1982) (holding that Federal Home Loan

Bank Board’s regulation preempted conflicting state

law).

Principles of conflict preemption, however, can-

not sustain the Secretary's preemption orders. The

Secretary declared preempted all state and local laws

“of, deriving from, or related to the subject of” each of

thirty-seven federal statutes that he had waived.

This goes far beyond any concept of conflict preemp-

tion. As this Court has instructed, “[t]o prevail on the

claim that the regulations have pre-emptive effect,

(the Secretary] must establish more than that they

‘touch upon’ or ‘relate to’ that subject matter.” CSX

Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993)

(emphasis added) (citing Morales v. Trans World Air-

lines, Inc., 504 U.S. 374, 383-384 (1992)). The Secre-

tary’s orders purporting to preempt all state laws

“related to” thirty-seven waived federal laws goes far

beyond conflict preemption and arrogates to the Sec-

retary a broad power of field preemption never

authorized by Congress.

There is a more fundamental flaw with the dis-

trict court’s conflict preemption argument. Even if

the district court were correct that the conflict pre-

emption framework is applicable here, “[t]he ques-

tion remains whether the [Secretary] acted within

(his] statutory authority in issuing the pre-emptive []

regulation,” de la Cuesta, 458 U.S. at 159, as well as

whether or not there actually is a conflict. /d. at 159

n.14. The Secretary nowhere enumerates which state

and local laws are displaced; nor does he explain why

all laws “of, deriving from, or related to the subject

of’ his mandate under the REAL ID Act is synony-

mous with the set of laws actually conflicting with

execution of that mandate. Hence it is possible, as

the district court speculated, that only those state

and local laws that “would directly conflict with Con-

gress’s objective of expeditiously constructing a bor-

der fence” are preempted by the Secretary's orders.

App., infra, 40a.

Due to the lack of judicial review, however, only

the Secretary is now able to make that limiting con-

struction of his orders. In effect, the district court

held that Congress may confide in an agency the

authority to determine when state law conflicts with

a federal program and to declare any such laws pre-

empted; to do so on an ad hoc, after-the-fact basis;

and to make such determinations without any possi-

bility of judicial review.

The district court’s decision, coupled with Section

102(c)’s sixty-day statute of lmitations, makes the

Secretary the sole arbiter of preemption decisions.

The statute’s preclusion of judicial review, once this

narrow window has closed, guarantees that any dis-

pute over which laws fall within the vague bounds of

the Secretary’s declaration of preemption will be re-

solved by agency fiat. This Court should grant review

to confirm that these questions are inherently judi-

cial, and that no agency is entitled, in the absence of

a clear and unequivocal delegation from Congress, to

interpret an ambiguous grant of authority to confer

upon itself a limitless and unreviewable power to

preempt state and local law.

Ill. The Questions Presented Are Important.

As explained above, the lower courts are in need

of guidance with respect to both of the questions pre-

sented. Review is warranted for three additional rea-

sons.

First, the legislative process will be more effec-

tive and efficient if Congress is able to ascertain in

advance the constitutional requirements applicable

to delegations of authority to executive agencies.

This case gives the Court an opportunity to address

two issues that arise frequently: the extent to which

Congress must provide for judicial review when it

delegates authority to affect private rights, and the

specificity with which Congress must act when it

wishes to delegate authority to preempt state law.

Second, Congress's elimination of any appeal

makes a grant of certiorari all the more pressing.

The elimination of an appeal as of right — either to

the courts of appeals or to this Court — sharply dis-

tinguishes this statute from the norm in our federal

system. Generally, when Congress bypasses the

courts of appeals, it provides for a direct appeal to

this Court.2 Here, however, it provided only for dis-

cretionary review on certiorari. That approach is vir-

tually unprecedented.* Congress’s decision to elimi-

nate any appeal of right renders discretionary review

by this Court the only means of obtaining a definitive

resolution of the serious constitutional questions this

case raises.

Indeed, because of the statute’s sixty-day statute

of limitations, this case presents the last chance for

any court to ensure that the Secretary’s waiver

authority conforms to the Constitution. Absent re-

view by this Court, petitioners will be left to the

mercy of the Secretary’s interpretation of the scope of

his delegated authority. He will be the sole arbiter of

3 See, e.g., Balanced Pudget and Emergency Deficit Control Act

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

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

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

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

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

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

Line Item Veto Act of 1996, Pub. L. No 104-130, 110 Stat. 1200

(formerly codified at 2 U.S.C. § 692), invalidated by Clinton v.

New York, 524 U.S. 417 (1998); Bipartisan Campaign Reform

Act of 2002, 2 U.S.C. § § 437h note (providing for direct appeal

to Supreme Court for constitutional challenges).

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

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

PAA — unlike Section 102(c) — permitted the district court to ad-

judicate claims that the agency had exceeded its own statutory

authority.

whether the waived laws are partially or totally in-

operative, whether the hundreds of state and local

laws implicated by his ambiguous waiver have been

preempted, to what extent, and how long the waivers

shall remain in effect. That power is inconsistent

with the Nation’s traditions, and with our Constitu-

tion.

Third, the constitutional questions about the

need for judicial review and the scope of the Secre-

tary’s power of preemption are important and are

fuliy and fairly presented by the record and decision

in this case.

This Court declined to hear an earlier case that

arose from a different waiver issued by the Secretary

along a different part of the border: Defenders of

Wildlife v. Chertoff, 527 F. Supp. 2d 119 (D.D.C.

2007), cert. denied, 128 S.Ct. 2962 (June 23, 2008). In

that case, however, the district court’s decision did

not squarely address the argument that the statute’s

preclusion of judicial review rendered the delegation

unconstitutional, and the Solicitor General asserted

that the petitioners had failed to advance in the dis-

trict court the contention regarding the necessity of

judicial review. Br. in Opp. at 14-15, Defenders of

Wildlife v. Chertoff, No. 07-1180 (May 23, 2008).

Here, the argument plainly was raised in and ad-

dressed by the district court.

The earlier case also did not present a separate

question regarding the Secretary’s assertion of

authority to preempt state and local laws. As the So-

licitor General observed, that case “which arose ex-

clusively under three federal statutes” was “an inap-

propriate vehicle for evaluating the effects of the

Secretary's waiver on state and local laws.” No. 07-

1180 Br. in Opp. at 11 n.5. Here, by contrast, the

preemption issue is squarely presented and was ad-

dressed by the district court.

Moreover, the waiver in the earlier case con-

cerned a fourteen-mile stretch of the fence around

and in the San Pedro Riparian National Conserva-

tion Area (SPRNCA). Construction of that portion of

the fence had been completed at the time of the

Defenders petition. Although the Solicitor General

agreed that this did not render the case moot, this

fact obviously diminished the practical significance of

the question presented. See No. 07-1180, Br. in Opp.

at 8 n.3, Defenders of Wildlife v. Chertoff, No. 07-

1180 (May 23, 2008). In contrast, the action below

arose from the Secretary’s waiver of federal, state,

and local laws in an area 470 miles in length, pass-

ing through four states. Construction along this

segment of the border fence is ongoing. See U.S. Cus-

toms and Border Protection, CBP Offers Landowners

Additional Consultation on Border Fence,

http://www.cbp.gov. xp/cgov/newsroom/news releases/

nov_2008/11192008.xml (explaining that construc-

tion of the fence is “underway” and is an “ongoing”

process).

Finally, we recognize that Congress has directed

the Department of Homeland Security to construct a

substantial barrier along significant portions of the

United States’ international border, and has indi-

cated that it regards the expeditious construction of

the border fence to be of the highest priority. This

legislative judgment is entitled to respect. Unfortu-

nately, in its effort to insure rapid construction of a

border fence, Congress delegated to an Executive of-

ficial unreviewable power to waive “all legal re-

quirements,” and this power has been exercised by

the Secretary in a way that runs roughshod over

fundamental principles of separation of powers and

federalism. Section 102(c)(1) (emphasis added).

Petitioners believe, however, that the constitu-

tional infirmities identified in this petition can be

rectified without a judgment enjoining further con-

struction of the fence, and without this Court setting

aside the waiver authority delegated to the Secretary

in Section 102(c). The unconstitutional dimensions of

the statute and the orders under review can be set

aside and severed from the balance of the statute,

leaving the basic mandate from Congress to achieve

expediticus construction of the border fence, and the

broad authority of the Secretary to waive federal le-

gal requiremen‘s that are truly necessary to achieve

that objective, unaltered.

The constitutional infirmities challenged by this

Petition are two: (1) the statute’s preclusion of judi-

cial review to ensure that the Secretary's waiver de-

cisions comply with applicable legal requirements,

and (2) the Secretary’s declaration that all state and

local laws “derived from or related to” thirty-seven

federal statutes are preempted. The first infirmity

can be cured by enjoining the second sentence of

Section 102(c)(1), and by interpreting the phrase “le-

gal requirements” and the sixty-day statute of limi-

tations to provide for judicial review of the Secre-

tary’s actions. The second infirmity can be cured by

holding that Section 102(c) does not contain the clear

and unequivocal delegation of authority which is re-

quired to confer authority on an executive agency to

preempt state and local law. Once these errors are

corrected, the balance of the statutory scheme, and

the Secretary’s orders implementing it, can function

effectively and constitutionally.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

THOMAS W. MERRILL ANDREW J. PINCUS

ScoTT L. SHUCHART Counsel of Record

Yale Law School CHARLES ROTHFELD

Supreme Court Clinic ELIZABETH G. OYER

127 Wall Street Mayer Brown LLP

New Haven, CT 06511 1909 K Street, NW

(203) 432-4800 Washington, DC 20006

(202) 263-3000

Counsel for Petitioners

DECEMBER 2008

APPENDICES

APPENDIX A

DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

Determination Pursuant to Section 102 of the

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, as Amended

April 8, 2008

AGENCY: Office of the Secretary, Department of

Homeland Security.

ACTION: Notice of determination; correction.

SUMMARY: The Secretary of Homeland Secu-

rity has determined, pursuant to law, that it is nec-

essary to waive certain laws, regulations and other

legal requirements in order to ensure the expeditious

construction of barriers and roads in the vicinity of

the international land border of the United States.

The notice of determination was published in the

Federal Register on April 3, 2008. Due to a publi-

cation error, the Project Area description was inad-

vertently omitted trom the April 3 publication. For

clarification purposes, this document is a republica-

tion of the April 3 document including the omitted

Project Arca description.

DATES: This Notice is effective on April 8, 2008.

Determination and Waiver

The Department of Homeland Security has a

mandate to achieve and maintain operational control

of the borders of the United States. Public Law 109-

367, 2, 120 Stat. 2638, 8 U.S.C. 1701 note. Congress

has provided the Secretary of Homeland Security

with a number of authorities necessary to accomplish

this mandate. One of these authorities is found at

section 102(c) of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (“ITIRIRA”).

Public Law 104-208, Div. C, 110 Stat. 3009-546,

3009-554 (Sept. 30, 1996) (8 U.S.C 1103 note), as

amended by the REAL ID Act of 2005, Public Law

109-13, Div. B, 119 Stat. 231, 302, 306 (May 11,

2005) (8 U.S.C. 1103 note), as amended by the Se-

cure Fence Act of 2006, Public Law 109-367, 3, 120

Stat. 2638 (Oct. 26, 2006) (8 U.S.C. 1103 note), as

amended by the Department of Homeland Security

Appropriations Act, 2008, Public Law 110-161, Div.

E, Title V, 564, 121 Stat. 2090 (Dec. 26, 2007). In

Section 102(a) of the IIRIRA, Congress provided that

the Secretary of Homeland Security shall take such

actions as may be necessary to install additional

physical barriers and roads (including the removal of

obstacles to detection of illegal entrants) in the vicin-

ity of the United States border to deter illegal cross-

ings in areas of high illegal entry into the United

States. In Section 102(b) of the ITRIRA, Congress has

called for the installation of fencing, barriers, roads,

lighting, cameras, and sensors on not less than 700

miles of the southwest border, including priority

miles of fencing that must be completed by December

of 2008. Finally, in section 102(c) of the ILRIRA,

Congress granted to me the authority to waive all le-

gal requirements that I, in my sole discretion, de-

termine necessary to ensure the expeditious con-

struction of barriers and roads authorized by section

102 of the IIRIRA.

I determine that the following area of Hidalgo

County, Texas, in the vicinity of the United States

border, hereinafter the Project Area, is an area of

high illegal entry:

- Starting approximately at the intersection of

Military Road and an un-named road (i.e. beginning

at the western end of the International Boundary

Waters Commission (IBWC) levee in Hidalgo

County) and runs east in proximity to the IBWC

levee for approximately 4.5 miles.

- Starting approximately at the intersection of

Levee Road and 5494 Wing Road and runs east in

proximity to the IBWC levee for approximately 1.8

miles.

- Starting approximately 0.2 mile north from the

intersection of S. Depot Road and 23rd Street and

runs south in proximity to the IBWC levee to the Hi-

dalgo POE and then east in proximity to the new

proposed IBWC levee and the existing IBWC levee to

approximately South 15th Street for a total length of

approximately 4.0 miles.

- Starting adjacent to Levee Road and approxi-

mately 0.1 miles east of the intersection of Levee

Road and Valley View Road and runs east in proxim-

ity to the IBWC levee for approximately 1.0 mile

then crosses the Irrigation District Hidalgo County

#1 Canal and will tie into the future New Donna

POE fence.

- Starting approximately 0.1 mile east of the in-

tersection of County Road 556 and County Road 1554

and runs east in proximity to the IBWC levee for ap-

proximately 3.4 miles.

- Starting approximately O.1 mile east of the

Bensten Groves road and runs east in proximity to

the IBWC levee to the Progresso POE for approxi-

mately 3.4 miles.

* Starting approximately at the Progresso POE

and runs east in proximity to the IBWC levee for ap-

proximately 2.5 miles.

In order to deter illegal crossings in the Project

Area, there is presently a need to construct fixed and

mobile barriers and roads in conjunction with im-

provements to an existing levee system in the vicin-

ity of the border of the United States as a joint effort

with Hidalyo County, Texas. In order to ensure the

expeditious construction of the barriers and roads

that Congress prescribed in the IIRIRA in the Project

Area, which is an area of high illegal entry into the

United States, I have determined that it is necessary

that | exercise the authority that is vested in me by

section 102(c) of the ITRIRA as amended. Accord-

ingly, | hereby waive in their entirety, with respect

to the construction of roads and fixed and mobile

barriers (including, but not limited to, accessing the

project area, creating and using staging areas, the

conduct of earthwork, excavation, fill, and site

preparation, and installation and upkeep of fences,

roads, supporting elements, drainage, erosion con-

trols, safety features, surveillance, communication,

and detection equipment of all types, radar and radio

towers, and lighting) in the Project Area, all federal,

state, or other laws, regulations and legal require-

ments of, deriving from, or related to the subject of,

the following laws, as amended: The National Envi-

ronmental Policy Act (Pub. L. 91-190, 83 Stat. 852

(Jan. 1, 1970) (42 U.S.C. 4321 et seq.)), the Endan-

gered Species Act (Pub. L. 93-205, 87 Stat. 884) (Dec.

28, 1973) (16 U.S.C. 1531 et seq.)), the Federal Water

Pollution Control Act (commonly referred to as the

Clean Water Act) (33 U.S.C. 1251 et seq.), the Na-

tional Historic Preservation Act (Pub. L. 89-665, 80

Stat. 915 (Oct. 15, 1966) (16 U.S.C. 470 et seg.)), the

Migratory Bird Treaty Act (16 U.S.C. 703 et seq.), the

Clean Air Act (42 U.S.C. 7401 et seg.), the Archeo-

logical Resources Protection Act (Pub. L. 96-95, 16

U.S.C. 470aa et seq.), the Safe Drinking Water Act

(42 U.S.C. 300f et seq.), the Noise Control Act (42

U.S.C. 4901 et seq.), the Solid Waste Disposal Act, as

amended by the Resource Conservation and Recov-

ery Act (42 U.S.C. 6901 et seq.), the Comprehensive

Environmental Response, Compensation, and Liabil-

ity Act (42 U.S.C. 9601 et seq.), the Archaeological

and Historic Preservation Act (Pub. L. 86-522, 16

U.S.C. 469 et seq.), the Antiquities Act (16 U.S.C. 431

et seq.), the Historic Sites, Buildings, and Antiquities

Act (16 U.S.C. 461 et seq.), the Farmland Protection

Policy Act (7 U.S.C. 4201 et seq.), the Coastal Zone

Management Act (Pub. L. 92-583, 16 U.S.C. 1451 et

seq.), the Federal Land Policy and Management. Act

(Pub L. 94-579, 43 U.S.C. 1701 et seq.), the National

Wildlife Refuge System Administration Act (Pub. L.

89-669, 16 U.S.C. 668dd-668ee), the Fish and Wild-

life Act of 1956 (Pub. L. 84-1024, 16 U.S.C. 742a, et

seq.), the Fish and Wildlife Coordination Act (Pub. L.

73-121, 16 U.S.C. 661 et seq.), the Administrative

Procedure Act (5 U.S.C. 551 et seq.), the Rivers and

Harbors Act of 1899 (33 U.S.C. 403), the Eagle Pro-

tection Act (16 U.S.C. 668 et seq.), the Native Ameri-

can Graves Protection and Repatriation Act (25

U.S.C. 3001 et seqg.): the American Indian Religious

Freedom Act (42 U.S.C. 1996), the Religious Freedom

Restoration Act (42 U.S.C. 2000bb), and the Federal

Grant and Cooperative Agreement Act of 1977 (31

U.S.C. 6303-05).

I reserve the authority to make further waivers

from time to time as I may determine to be necessary

to accomplish the provisions of section 102 of the

IIRIRA, as amended.

Michael Chertoff,

Secretary.

APPENDIX B

DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

Determination Pursuant to Section 102 of the

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, as Amended

April 8, 2008

AGENCY: Office of the Secretary, Depariment of

Homeland Security.

ACTION: Notice of determination; correction.

SUMMARY: The Secretary of Homeland Secu-

rity has determined, pursuant to law, that it is nec-

essary to waive certain laws, regulations and other

legal requirements in order to ensure the expeditious

construction of barriers and roads in the vicinity of

the international land border of the United States.

The notice of determination was published in the

Federal Register on April 3, 2908. Due to a publica-

tion error, the description of the Project Areas was

inadvertently omitted from the April 3 publication.

For clarification purposes, this document is a repub-

lication of the April 3 document including the omit-

ted description of the Project Areas.

DATES: This Notice is effective on April 8, 2008.

Determination and Waiver

| have a mandate to achieve and maintain opera-

tional control of the borders of the United States.

Public Law 109-367, 2, 120 Stat. 2638, 8 U.S.C. 1701

note. Congress has provided me with a number of au-

thorities necessary to accomplish this mandate. One

of these authorities is found at section 102(c) of the

Ilegal _ Immigration Reform and Immigrant Respon-

sibility Act of 1996 (“ITRIRA”). Public Law 104-208,

Div. C, 110 Stat. 3009-546, 3009-554 (Sept. 30, 1996)

(8 U.S.C 1103 note), as amended by the REAL ID Act-

of 2005, Public Law 109-13, Div. B, 119 Stat. 231,

302, 306 (May 11, 2005) (8 U.S.C. 1103 note), as

amended by the Secure Fence Act of 2006, Public

Law 109-367, 3, 120 Stat. 2638 (Oct. 26, 2006) (8

U.S.C. 1103 note), as amended by the Department of

Homeland Security Appropriations Act, 2008, Public

Law 110-161, Div. E, Title V, 564, 121 Stat. 2090

(Dec. 26, 2007). In Section 102(a) of IIRIRA, Con-

gress provided that the Secretary of Homeland Secu-

rity shall take such actions as may be necessary to

install additional physical barriers and roads (includ-

ing the removal of obstacles to detection of illegal en-

trants) in the vicinity of the United States border to

deter illegal crossings in areas of high illegal entry

into the United States. In Section 102(b) of ITRIRA,

Congress has called for the installation of fencing,

barriers, roads, lighting, cameras, and sensors on not

less than 700 miles of the southwest border, includ-

ing priority miles of fencing that must be completed

by December 2008. Finally, in section 102(c) of the

IIRIRA, Congress granted to me the authority to

waive all legal requirements that I, in my sole discre-

tion, determine necessary to ensure the expeditious

construction of barriers and roads authorized by sec-

tion 102 of ILRIRA.

| determine that the following areas in the vicin-

ity of the United States border, located in the States

of California, Arizona. New Mexico. and Texas are

areas of high illegal entry (collectively “Project Ar-

eas”):

California

- Starting approximately 1.5 mile east of Border

Monument (BM) 251 and ends approximately at BM

250.

* Starting approximately 1.1 miles west of BM

245 and runs east for approximately 0.8 mile.

- Starting approximately 0.2 mile west of BM

243 and runs east along the border for approximately

0.5 mile.

> Starting approximately 0.7 mile east of BM 243

and runs east along the border for approximately 0.9

mile.

- Starting approximately 1.0 mile cast of BM 243

and runs east along the border for approximately 0.9

mile.

- Starting approximately 0.7 mile west of BM

242 and stops approximately 0.4 mile west of BM

242.

- Starting approximately 0.8 mile east of BM 242

and runs east along the border for approximately 1.1

miles.

- Starting approximately 0.4 mile east of BM 239

and runs east for approximately 0.4 mile along the

border.

- Starting approximately 1.2 miles east of BM

239 and runs east for approximately 0.2 mile along

the border.

- Starting approximately 0.5 mile west of BM

235 and runs east along the border for approximately

1.1 miles.

10a

- Starting approximately 0.8 mile east of BM 235

and runs eas’ along the border for approximately 0.1

mile.

- Starting approximately 0.6 mile east of BM 234

and runs east for approximately 1.7 miles along the

border.

- Starting approximately 0.4 mile east of BM 233

and runs east for approximately 2.1 miles along the

border.

- Starting approximately 0.05 mile west of BM

232 and runs east for approximately 0.1 mile along

the border.

- Starting approximately 0.2 mile east of BM 232

and runs east for approximately 1.5 miles along the

border.

- Starting 0.6 mile east of Border Monument 229

heading east along the border for approximately 11.3

miles to BM 225.

- Starting approximately 0.1 mile east of BM 224

and runs east along the border for approximately 2.5

miles.

* Starting approximately 2.3 miles east of BM

220 and runs east along the border to BM 207.

Arizona

- Starting approximately 1.0 mile south of BM

206 and runs south along the Colorado River for ap-

proximately 13.3 miles

- Starting approximately 0.1 mile north of

Couaty 18th Street running south along the border

for approximately 3.8 miles

lla

- Starting at the Eastern edge of BMGR and

runs east along the border to approximately 1.3

miles west of BM 174.

- Starting approximately 0.5 mile west of BM

168 and runs east along the border for approximately

5.3 miles.

- Starting approximately 1 mile east of BM 160

and runs east for approximately 1.6 miles.

- Starting approximately 1.3 miles east of BM

159 and runs east. along the border to approximately

0.3 mile east of BM 140.

* Starting approximately 2.2 miles west of BM

138 and runs east along the border for approximately

2.5 miles.

- Starting approximately 0.2 miles east of BM

136 and runs east along the border to approximately

0.2 mile west of BM 102.

- Starting approximately 3 miles west of BM 99

and runs east along the border approximately 6.5

miles.

- Starting approximately at BM 97 and runs east

along the border approximately 6.9 miles.

- Starting approximately at BM 91 and runs east

along the border to approximately 0.7 miles east of

BM 89.

- Starting approximately 1.7 miles west of BM

86 and runs east along the border to approximately

0.7 mile west of BM 86.

- Starting approximately 0.2 mile west of BM 83

and runs east along the border to approximately 0.2

mile east of BM 73.

New Mexico

1Za

- Starting approximately 0.8 mile west of BM 69

and runs east along the border to approximately 1.5

miles west of BM 65.

- Starting approximately 2.3 miles east of BM 65

and runs east along the border for approximately 6.0

miles.

- Starting approximately 0.5 mile east of BM 61

and runs east along the border until approximately

1.0 mile west of BM 59.

- Starting approximately 0.1 miles east of BM 39

and runs east along the border to approximately 0.3

mile east of BM 33.

--Starting approximately 0.25 mile east of BM 31

and runs east along the border for approximately

14.2 miles.

- Starting approximately at BM 22 and runs east

along the border to approximately 1.0 mile west BM

16.

- Starting at approximately 1.0 mile west of BM

16 and runs east along the border to approximately

BM 3.

Texas

- Starting approximately 0.4 miles southeast of

BM 1 and runs southeast along the border for ap-

proximately 3.0 miles.

- Starting approximately 1 Mi E of the intersec-

tion of Interstate 54 and Border Highway and runs

southeast approximately 57 miles in proximity to the

IBWC levee to 3.7 miles easi of the It Hlancock POF.

- Starting approximately 1.6 miles west of the

intersection of Esperanza and Quitman Pass Roads

13a

and runs along the IBWC levee east for approxi-

mately 4.6 miles.

- Starting at the Presidio POE and runs west

along the border to approximately 3.2 miles west of

the POE.

- Starting at the Presidio POE and runs east

along the border to approximately 3.4 miles east of

the POE.

- Starting approximately 1.8 miles west of Del

Rio POE and runs east along the border for approxi-

mately 2.5 miles.

- Starting approximately 1.3 Mi north of the Ea-

gle Pass POE and runs south approximately 0.8

miles south of the POE.

- Starting approximately 2.1 miles west of Roma

POE and runs east approximately 1.8 miles east of

the Roma POE.

- Starting approximately 3.5 miles west of Rio

Grande City POE and runs east in proximity to the

Rio Grande river for approximately 9 miles.

- Starting approximately 0.9 miles west of

County Road 41 and runs east approximately 1.2

miles and then north for approximately 0.8 miles.

- Starting approximately 0.5 mile west of the

end of River Dr and runs east in proximity to the

[BWC levee for approximately 2.5 miles.

- Starting approximately 0.6 miles east of the in-

tersection of Benson Rd and Cannon Rd and runs

east in proximity to the LBWC levee for approxi-

mately 1 mile.

Starting at the Los Indios POE and runs west

in proximity to the IBWC levee for approximately 1.7

miles.

l4a

- Starting at the Los Indios POE and runs east

in proximity to the IBWC levee for approximately 3.6

miles.

- Starting approximately 0.5 mile west of Main

St and J Padilla St intersection and runs east in

proximity to the IBWC levee for approximately 2.0

miles.

- Starting approximately 1.2 miles west of the

Intersection of U.S. HWY 281 and Los Ranchitos Rd

and runs east in proximity to the IBWC levee for ap-

proximately 2.4 miles.

- Starting approx 0.5 miles southwest of the in-

tersection of U.S. 281 and San Pedro Rd and runs

east in proximity to the IBWC levee for approxi-

mately 1.8 miles.

- Starting approximately 0.1 miles southwest of

the Intersection of Villanueva St and Torres Rd and

runs east in proximity to the IBWC levee for ap-

proximately 3.6 miies.

- Starting approximately south of Palm Blvd and

runs east in proximity to the City of Brownsville’s

levee to approximately the Gateway-Brownsville

POE where it continues south and then east in prox-

imity to the IBWC levee for a total length of ap-

proximatcly 3.5 miles.

- Starting at the North Eastern Edge of Ft

Brown Golf Course and runs east in proximity to the

IBWC levee for approximately 1 mile.

* Starting approximately 0.3 miles east of Los

Tomates-Brownsville POE and runs east and then

north in proximity to the IBWC levee for approxi-

mately 13 miles.

In order to deter illegal crossings in the Project

Areas, there is presently a need to construct fixed

15a

and mobile barriers (such as fencing, vehicle barri-

ers, towers, sensors, cameras, and other surveillance,

communication, and detection equipment) and roads

in the vicinity of the border of the United States. In

order to ensure the expeditious construction of the

barriers and roads that Congress prescribed in the

ILRIRA in the Project Areas, which are areas of high

illegal entry into the United States, I have deter-

mined that it is necessary that I exercise the author-

ity that is vested in me by section 102(c) of the

IJRIRA as amended.

Accordingly, | hereby waive in their entirety,

with respect to the construction of roads and fixed

and mobile barriers (including, but not limited to, ac-

cessing the project area, creating and using staging

areas, the conduct of earthwork, excavation, fill, and

site preparation, and installation and upkeep of

fences, roads, supporting elements, drainage, erosion

controls, safety features, surveillance, communica-

tion, and detection equipment of all types, radar and

radio towers, and lighting) in the Project Areas, all

federal, state, or other laws, regulations and legal

requirements of, deriving from, or related to the sub-

ject of, the following laws, as amended: The National]

Environmental Policy Act (Pub. L. 91-190, 83 Stat.

852 (Jan. 1, 1970) (42 U.S.C. 43821 et seq.)), the En-

dangered Species Act (Pub. L. 93-205, 87 Stat. 884

(Dec. 28, 1973) (16 U.S.C. 1531 et seq.)), the Federal

Water Pollution Control Act (commonly referred to

as the Clean Water Act) (33 U.S.C. 1251 et seq.)), the

National Historic Preservation Act (Pub. L. 89-665,

80 Stat. 915 (Oct. 15, 1966) (16 U.S.C. 470 et seq.)),

the Migratory Bird Treaty Act (16 U.S.C. 703 et seq.),

the Clean Air Act (42 U.S.C. 7401 et seq.), the Ar-

cheological Resources Protection Act (Pub. L. 96-95,

16 U.S.C. 470aa et seq.), the Safe Drinking Water Act

16a

(42 U.S.C. 300f et seq.), the Noise Control Act (42

U.S.C. 4901 et seq.), the Solid Waste Disposal Act, as

amended by the Resource Conservation and Recov-

ery Act (42 U.S.C. 6901 et seq.), the Comprehensive

Environmental Response, Compensation, and Liabil-

ity Act (42 U.S.C. 9601 et seq.), the Archaeological

and Historic Preservation Act (Pub. L. 86-523, 16

U.S.C. 469 et seqg.), the Antiquities Act (16 U.S.C. 431

et seq.), the Historic Sites, Buildings, and Antiquities

Act (16 U.S.C. 461 et seq.), the Wild and Scenic Riv-

ers Act (Pub. L. 90-542, 16 U.S.C. 1281 et seq.), the

Farmland Protection Policy Act (7 U.S.C. 4201 et

seq.), the Coastal Zone Management Act (Pub. L. 92-

583, 16 U.S.C. 1451 et seq.), the Wilderness Act (Pub.

L. 88-577, 16 U.S.C. 1181 et seq.), the Federal Land

Policy and Management Act (Pub L. 94-579, 43

U.S.C. 1701 et seq.), the National Wildlife Refuge

System Administration Act (Pub. L. 89-669, 16

U.S.C. 668dd-668ee), the Fish and Wildlife Act of

1956 (Pub. L. 84-1024, 16 U.S.C. 742a, et seq.), the

Fish and Wildlife Coordination Act (Pub. L. 73-121,

16 U.S.C. 661 et seg.), the Administrative Procedure

Act (5 U.S.C. 551 et seq.), the Otay Mountain Wil-

derness 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 (Pub. L. 64-235,

16 U.S.C. 1, 2-4), the National Park Service General

Authorities Act (Pub. L. 91-383, 16 U.S.C. la-1 et

seq.), 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 seq.), the Native American Graves Pro-

tection and Repatriation Act (25 U.S.C. 3001 et segq.),

17a

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 et seq.), and the Multiple

Use and Sustained Yield Act of 1960 (16 U.S.C. 528-

531).

This waiver does not supersede, supplement, or

in any way modify the previous waivers published in

the Federal Register on September 22, 2005 (70 FR

55622), January 19, 2007 (72 FR 2535), and October

26, 2007 (72 FR 60870).

I reserve the authority to make further waivers

from time to time as | may determine to be necessary

to accomplish the provisions of section 102 of the

IIRIRA, as amended.

Michael Chertoff,

Secretary.

18a

APPENDIX C

IN THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT OF

TEXAS EL PASO DIVISION

COUNTY OF EL PASO, et al.,

Plaintiffs,

Vv.

MICHAEL CHERTOFF, Secretary, U.S. De-

partment of Homeland Security, and U.S. DE-

PARTMENT OF HOMELAND SECODRITY,

Defendants.

EK P-08-CA-196-FM

MEMORANDUM OPINION AND ORDER

DENYING PLAINTIFFS’ APPLICATION FOR

PRELIMINARY INJUNCTION

On this day, the Court considered County of El

Paso, City of El Paso, El Paso County Water Im-

provement District No. 1 (the “Water District”), Hud-

speth County Conservation and Reclamation District

No. 1, Ysleta Del Sur Pueblo, Frontera Audubon So-

ciety, Friends of the Wildlife Corridor, Friends of La-

guna Atascosa National Wildlife Refuge, and Mark

Clark’s (collectively, “Plaintiffs”) “Application for

Preliminary Injunction” (“Application”) [Rec. No. 19},

filed on June 23, 2008, in the above-captioned cause.

In their Application, Plaintiffs request the Court to

enter a preliminary injunction to prevent Michael

19a

Michael Chertoff, Secretary of the Department of

Homeland Security (“Chertoff’ or “Secretary”) and

the Department of Homeland Security (“DHS”) (col-

lectively, “Defendants”) from constructing any fenc-

ing, walls, or other physicai barriers along the

United States-Mexico border in Texas, New Mexico,

Arizona, and California, unless and until DHS com-

plies with the laws waived by Chertoff on April 3,

2008. After carefully considering the parties’ briefs,

arguments, and applicable law, the Court concludes

it should deny Plaintiffs’ Application.

I. BACKGROUND

A. Iegal Immigration Reform and Immigrant

Responsibility Act (““LIRIRA”) Section 102

In 1996, Congress enacted the Illegal Immigra-

tion Reform and Immigrant Responsibility Act

(“IIRTRA”), which, pursuant to Section 102(a), re-

quired the Attorney Gencral to “take such actions as

may be necessary to install additional physical barri-

ers and roads (including the removal of obstacles to

detection of illegal entrants) in the vicinity of the

United States border to deter illegal crossings in ar-

eas of high illegal entry into the United States.”!

IIRIRA Section 102(c), as originally enacted, author-

ized the Attorney General to waive the Endangered

Species Act of 1973 (“ESA”) and the National Envi-

ronmental Policy Act of 1969 (“NEPA”) when he de-

termined such waiver “was necessary to ensure ex-

peditious construction of the barriers and roads un-

der this section.” The Homeland Security Act of

' Pub. L. No. 104-208, § 102(a), 110 Stat. 3009, 3009-554 (1996),

coditied at 8 U.S.C. § 1103 note.

2 Id. § 102(c).

20a

2002 abolished the Immigration and Naturalization

Service and transferred responsibility for the con-

struction of border barriers from the Attorney Gen-

eral to DHS.* In 2005, pursuant to the REAL ID Act,

Congress amended Section 102(c) and gave the Sec-

retary, “notwithstanding any other provision of

law ... the authority to waive all legal requirements

such Secretary... determines necessary to ensure

expeditious construction of the barriers and roads

under this section” (“Waiver Legislation’).4 Section

102, as amended, only permits claims alleging a con-

stitutional violation,® and any “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.’

B. Factual and Procedural History

On April 3, 2008, Chertoff exercised his author-

ity, pursuant to Section 102, and published two no-

tices in the Federal Register waiving various federal,

state, and local laws to facilitate construction of

physical barriers and roads along the United States-

Mexican border. Specifically, Chertoff waived

twenty-seven laws to facilitate construction of barri-

ers and roads along twenty-two miles of the Texas-

3 Pub. L. No. 107-296, 116 Stat. 2135.

4 Pub. L. No. 109-13, § 102(c)(1), 119 Stat. 231, 306 (2005), codi-

fied at 8 U.S.C. § 1103 note (“REAL ID Act”). The Secretary's

waiver becomes effective upon publication in the Federal Regis-

ter. Id.

5 Ja. § 102(c)(2)¢(A).

6 Id. § 102{c)(2)(C).

21la

Mexico border in Hidalgo County, Texas.’? Chertoff

also waived thirty-seven laws to facilitate construc-

tion of barriers and roads along 470 miles of the

United States-Mexico border in Texas, New Mexico,

Arizona, and California.§

On June 2, 2008, Plaintiffs filed their “Complaint

for Declaratory and Injunctive Relief’ (“Complaint”)

[Rec. No. 1]. In their Complaint, Plaintiffs raise three

constitutional challenges to the Waiver Legislation:

(1) a Nondelegation challenge pursuant to Article I,

Section 1, of the Constitution, (2) a Presentment

Clause challenge pursuant to Article I, Section 7, of

the Constitution, and (3) a federalism challenge pur-

suant to the Constitution’s Tenth Amendment. On

June 23, 2008, Plaintiffs filed their Application for

Preliminary Injunction. On June 24, 2008, Defen-

dants responded by filing their “Memorandum of

Points and Authorities in Opposition to Plaintiffs’

Application for Preliminary Injunction and in Sup-

port of Defendants’ Motion to Dismiss” (“Response”)

[Rec. No. 21]. On July 8, 2008, Plaintiffs filed their

“Reply Brief in Support of Plaintiffs’ Application for

Preliminary Injunction and Brief Opposing Defen-

dants’ Motion to Dismiss” [Rec. No. 23].” Defendants’

Reply Memorandum in Support of Defendants’ Mo-

tion to Dismiss” [Rec. No. 26] followed on July 21,

2008.

7 See Determination Pursuant to Section 102 of the Illegal Im-

migration Reform and Immigrant Responsibility Act of 1996, as

Amended, 73 Fed. Reg. 19077 (Apr. 8, 2008) (“Hidalgo County

Waiver’).

8 Id. at 73 Fed. Reg. 19078 (Apr. 8, 2008) (“Multi-state Waiver’)

Il. APPLICABLE LAW

“A preliminary injunction ‘is an extraordinary

and drastic remedy, not to be granted routinely, but

only when the movant, by a clear showing, carries a

burden of persuasion.”’ The purpose of a preliminary

injunction is to preserve the parties’ relative posi-

tions until a court is able to adjudicate the merits of

their respective grievances.!°

To obtain a preliminary injunction, a_ plaintiff

must establish four factors: (1) a substantial likeli-

hood the plaintiff will prevail on the merits; (2) a

substantial threat the plaintiff will suffer irreparable

injury if the injunction is not granted; (3) the threat-

ened injury to the plaintiff outweighs the threatened

injury to the defendant; and (4) granting the pre-

liminary injunction will not adversely affect the pub-

lic interest.!!

Ill. ANALYSIS

A Factor One: Substantial Likelihood

Plaintiffs Will Prevail on the Merits

in their Apphcation, Plaintiffs raise three consti-

tutional challenges to the Waiver Legislation: (1) a

Nondelegation challenge pursuant to Article I, Sec-

tion 1, of the Constitution, (2) a Presentment Clause

) ‘ ~~ . ,

challenge pursuant to Article I, Section 7, of the Con-

Black Fire Fighters A Dall 1) F 2d 6d tn <1iF

1990) (citir Holland A I? ( Succe ) yf PR 7

F.2d 992, 997 (5th Cir. 198°

/ / I { ( hy ‘a 4 945 s

ry ¢ ’ ( Va | Q > ’ t i}

23a

stitution, and (3) a Federalism challenge pursuant to

the Constitution’s Tenth Amendment.

(1) Plaintiffs’ Nondelegation Challenge

(a) Applicable Law

Article I, Section 1, of the Constitution provides

“fajll legislative Powers herein granted shall be

vested in a Congress of the United States.”!2 “From

this language the [Supreme] Court has derived the

nondelegation doctrine: that Congress may not con-

stitutionally delegate its legislative power to another

branch of Government.”!3 The Nondelegation Doc-

trine requires Congress to “lay down by legislative

act an intelligible principle to which the person or

body authorized to [act] is directed to conform.”!4 To

satisfy the intelligible principle standard, courts ap-

ply a three prong test and deem a statute to be con-

stitutional only “if Congress clearly delineates [1] the

general policy, [2].the public agency which is to apply

it, and [3] the boundaries of this delegated author-

ity.”16

In 1935, the Supreme Court invalidated two fed-

eral statutes because they lacked an intelligible prin-

ciple to guide the respective agencies.!® Since 1935,

12 U.S. CONST. art. J, § 1

13 Touby v. United States. 500 U.S. 160. 165 (1991).

14 Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001)

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

394, 409 (1928)).

16 Mistretta v. United States, 488 U.S. 361, 372-73 (1989) (quot

ing Am. Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946))

® See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S

495 (1935): Panama Refining Co. v. Ryan, 293 U.S. 388 (1935)

2Aa

however, the Supreme Court has “upheld... without

deviation, Congress’[s] ability to delegate power un-

der broad standards.”!7 The Supreme Court has

stated “the degree of agency discretion that is ac-

ceptable varies according to the scope of the power

congressiona!!y conferred,”!® but if the delegation is

in an area waere the Executive Branch maintains

traditional authority, Congress may delegate in even

broader terms. ?9

(b) Discussion

G) Boundaries of Delegated Authority

(34 Prong)

First, Plaintiffs argue the Waiver Legislation un-

constitutionally delegates legislative power to DHS.

No one disputes Congress has successfully “articu-

lated a general policy (construction of a border fence)

[Prong 1] and an agency actor (the Secretary of

Homeland Security) [Prong 2]”2° to satisfy the first

two prongs of the intelligible principle standard.

However, Plaintiffs contend Congress has “utterly

failed to prescribe the requisite boundaries of the

delegated authority [Prong 3].”?' Plaintiffs maintain

when Congress broadly delegates its powers, “more

detailed guidance is necessary to ensure that discre-

tion 1s exercised only in ways that effectuate Con-

gresss expressed legislative intent. Where, as here,

the delegated authority is exceptionally broad . .. the

intelligible principle standard cannot be satisfied by

’ Mistretta, 488 U.S. at 373

3 Whitman, 531 U.S. at 475

‘Loving v. United States. 517 U.S. 748, 772 (1996)

PIs Application at 6-7

anything short of ‘substantial guidance’ from Con-

gress. 22 Plaintiffs compare the current version of

Section 102(c) with its prior version (under which the

Attorney General could only waive NEPA and ESA),

arguing the current version of Section 102(c) radi-

cally differs from the prior version because it permits

the Secretary to identify which laws can be waived,

instead of merely deciding if the laws should be

waived.?23

Plaintiffs’ nondelegation arguments have been

addressed in depth in one or more of the previous

district. court opinions on this issue.24 Specifically, in

Sierra Club, the district court compared both ver-

sions of Section 102(c) and found that, even though

Congress had expanded the delegation provision to

include the waiver of “ail laws,” it only did so for the

“narrow purpose of expeditious completion” of the

construction authorized by the Waiver Legislation.*°

The district court found Congress had laid down an

intelligible principle in the Waiver Legislation be-

2 Pls.’ Application at 7.

Id. at 5

24 See Sierra Club v. Ashcroft, 2005 U.S. Dist. LEXIS 44244

(S.D. Cal. Dee. 12, 2005), no petition for cert. filed|| (addressing

the constitutionality of the Secretary's waiver authority and

holding the delegation of authority was constitutional); Defend

ers of Wildlife v. Chertoff, 527 F. Supp. 2d 119 (D.D.C. 2007),

cert. denied, 2008 WL 728197, 76 U.S.L.W. 3512 (June 23, 2008)

(holding the Secretary’s waiver authority, pursuant to Section

102, is a constitutional delegation of authority); Save Our Heri-

tage Organization v. Gonzales, 533 F. Supp. 2d 58 (D.D.C

2008), no petition for cert. filed (adopting the Srerra Club dis

trict court’s analysis and holding the Secretary's waiver power,

pursuant to Section 102, :s constitutional)

2005 U.S. Dist. LEXIS 44244 at *20

26a

cause “improvement of U.S. border protection is the

‘clearly delineated general policy, required for a

proper delegation, and [] Congress adequately cir-

cumscribed the actions permitted to be taken as

those ‘necessary to install additional physical barri-

ers and roads.” The district court also found the

“necessity” standard provided in the Waiver Legisla-

tion was constitutional.27 Finally, the district court

found because “the delegation of authority in this in-

stance implicates immigration enforcement and na-

tional security — matters in which the Executive

Branch already exercises considerable independent

authority, the delegation was appropriate.”

In Defenders of Wildlife, the district court apphed

the same reasoning as the Sierra Club court and

held the waiver provision did not constitute an im-

permissible legislative delegation.29 The district

court held Section 102

meets the requirements of the Su-

preme Court’s nondelegation cases.

26 Id.

27 Id. at *21. The district court compared the Waiver Legisla-

tion’s necessity standard to the standard found in Whitman, in

which the Supreme Court held a delegation to the Enviren-

mental Protection Agency to “set air quality standards at the

level that is ‘requisite,’ that 1s, not lower or higher than is nec

essary — to protect public health,” was constitutional. Id. (quot-

ing Whitman, 531 U.S. at 474-76).

28 Td. at *23. The district court noted the Supreme Court’s hold

ing that immigration policy falls within the inherent executive

powers. See Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950)

(‘When Congress prescribes a procedure concerning the admis-

sibility of aliens, it is not dealing alone with a legislative power

It is implementing an inherent executive power.’).

‘4 Defenders of Wildlife, 527 F. Supp. 2d at 12

27a

The “general policy” is “clearly de-

lineated” — i.e. to expeditiously “in-

stall additional physical barriers and

roads... to deter illegal crossings in

areas of high illegal entry.”And, the

“boundaries” of the delegated author-

ity are clearly defined by Congress’s

requirement that the Secretary may

waive only those laws that he deter-

mines “necessary to ensure expedi-

tious construction.”3°

Moreover, in response to plaintiffs’ arguments

that the Secretary's scope of authority was excep-

tionally broad, the district court observed “there is no

legal authority or principled basis upon which a

court may strike down an otherwise permissible

delegation simply because of its broad scope.”*! The

district court noted that “[w]hen the area to which

the legislation pertains is one where the Executive

Branch already has significant independent constitu-

tional authority, delegations may be broader than in

other contexts.”*? In Save Our Heritage Organiza-

tion, the district court agreed with the Defenders of

Wildlife court’s analysis and held it found “no consti-

tutional impediment to the Secretary’s waivers be-

cause there is an intelligible principle [to which] the

39 Jd. (quoting Mistretta, 488 U.S. at 372-73; 8 U.S.C. § 1103

note).

1 Jd. at 128; see also Loving, 517 U.S. at 771 (“[Wle have since

[1935] upheld, without exception, delegations under standards

phrased in sweeping terms.”)

32 Jd. at 129 (quoting Sierra Club, 2005 U.S. Dist. LEXIS at *17

(citing Loving, 517 U.S. at 772))

28a

Secretary must conform [] in the exercise of his dele-

gated power.’

After carefully considering the relevant law, the

Court concludes the Waiver Legislation clearly satis-

fies the intelligible principle standard. In light of the

Sierra Club, Defenders of Wildlife, and Save Our

Heritage Organization courts’ well-analyzed deci-

sions on this issue, the Court finds Congress consti-

tutionally delegated its authority in the Waiver Leg-

islation because it provided the Secretary with an in-

telligible principle to guide his discretionary waivc;x

of legal requirements to expeditiously complete con-

struction of physical barriers and roads at the na-

tion’s borders.

(11) Lack of Judicial Review

Second, Plaintiffs argue the Waiver Legislation

is unconstitutional because the Secretary’s authority

is “not constrained by judicial review.”54 Plaintiffs

argue a constitutional delegation of legislative

authority requires an intelligible principle and judi-

cial review. Plaintiffs claim “[w]henever Congress

has delegated broad authority to the Executive

branch, the Supreme Court has found the presence of

judicial review essential to satisfy the intelligible

principle standard.” They contend “the [Supreme]

Court has dispensed with the requirement of judicial

review only in the limited category of cases in which

delegated authority falls squarely within the inde-

3 Save Our Heritage Organization, 533 F. Supp. 2d at 63-64.

' Pls.’ Application at 9

Id. at 10

29a

pendent authority of the Executive Branch and thus

does not require an ‘intelligible principle.”’*®

Plaintiffs cite the Supreme Court cases of Yakus

v. United States *7 and American Power & Light Co.

v. SEC% for the principle that judicial review is re-

guired in the context of the intelligible principle

analysis.°9 In Yakus, the Supreme Court upheld the

Emergency Price Control Act (“EPCA”) against a

nondelegation challenge because it determined Con-

gress had provided constitutionally-adequate stan-

dards to guide the Price Administrator’s fixing of

price controls.49 The Supreme Court stated:

Only if we could say that there is an

absence of standards for the guidance

of the Administrator’s action, so that

it would be impossible itn a proper

proceeding to ascertain whether the

will of Congress has been obeyed,

would we be justified in overriding its

choice of means for effecting its de-

clared purpose of preventing infla-

tion. The standards prescribed by the

present Act [EPCA], with the aid of

the ‘statement of the considerations’

required to be made by the Adminis-

trator, are sufficiently definite and

s6 Td. at 11 (emphasis added)

7 321 U.S. 414 (1944)

8 329 U.S. 90 (1946).

'’ Plaintiffs also cite to other Supreme Court cases which cite

back to Yakus and American Power tor the same principle See

eg., Touby, 500 U.S. at 168-69; Skinner v. Mid-Am. Pipeline

Co., 490 US. 212, 218 (1989)!:] Mistretta, 488 U.S. at 379

321 U.S. at 426

30a

precise to enable Congress, the courts

and the public to ascertain whether

the Administrator, in fixing the des-

ignated prices, has conformed to

those standards.#!

in American Power, the Supreme Court upheld the

Public Utility Holding Company Act of 1935 (“PU-

HCA”) against a nondelegation challenge because it

found the statute provided constitutionally-adequate

guidance.‘? The Supreme Court stated:

Necessity therefore fixes a point be-

yond which it is unreasonable and

impracticable to compel Congress to

prescribe detailed rules; it then be-

comes constitutionally sufficient if

Congress clearly delineates the gen-

eral policy, the public agency which is

to apply it, and the boundaries of this

delegated authority. Private rights

are protected by access to the courts

to test the application of the policy in

the light of these legislative declara-

tions. Such is the situation here.4%

After carefully considering Plaintiffs’ argument,

the Court finds the Supreme Court does not require

judicial review to satisfy the intelligible principle

standard. In Whitman, the Supreme Court held a

constitutionally permissible delegation only required

Congress to provide an intelligible principle to guide

the exercise of delegated authority.44 The Supreme

1! Jd. (emphasis added).

42 39299 US. at 104-06.

43 Jd. at 105.

46531 U.S. at 472

3la

Court first announced this clearly in J.W. Hampton,

Jr. & Co., when it declared “[i]f Congress shall lay

down by legislative act an intelligible principle to

which the person or body authorized to [act] is di-

rected to conform, such legislative action is not a for-

bidden delegation of legislative power.”*°

Moreover, Plaintiffs’ argument that Yakus and

American Power stand for the proposition that judi-

cial review is required to satisfy the intelligible prin-

ciple standard is unavailing. In Yakus, the Supreme

Court discussed how Congress had provided ade-

quate standards in the EPCA long before the Su-

preme Court even mentioned judicial review. The ex-

cerpt from Yakus** above could also be read to simply

imply the Supreme Court understands the need to

facilitate accountability generally. In that portion of

the Yakus opinion, the Supreme Court merely men-

tions review by Congress, the courts and the public,

rather than mandating a necessary framework for

judicial review. Moreover, in American Power, the

plaintiff did not directly challenge PUHCA on the

grounds it lacked judicial review. The plaintiff in-

stead challenged PUHCA because certain statutory

terms were not defined and allegedly gave the com-

mission unfettered discretion in its decisions.*?

45976 US. at 409.

‘6 “The standards prescribed by the present Act [EPCA], with

the aid of the ‘statement of the considerations’ required to be

made by the Administrator, are sufficiently definite and precise

to enable Congress, the courts and the public to ascertain

whether the Administrator, in fixing the designated prices, has

conformed to those standards.” Yakus, 321 U.S. at 426 (empha-

sis added)

‘7 American Power, 329 U.S. at 104.

32a

In lght of the fact that (1) Plaintiffs have not

presented any cases in which the Supreme Court

struck down a statute explicitly for lack of judicial

review in the intelligible principle analysis, (2) the

Supreme Court denied certiorari in Defenders of

Wildlife where the plaintiffs’ main arguments as-

serted judicial review was required in the intelligible

principle standard analysis, (3) other courts have

held the Supreme Court does not require judicial re-

view in the intelligible principle analysis,** and (4)

the Waiver Legislation does not preclude judicial re-

view entirely because parties can petition for certio-

rari to the Supreme Court,’? the Court concludes

48 In United States v. Bozarov, the Ninth Circuit considered

whether judicial review was required to satisfy the intelligible

principle standard and held preclusion of judicial review in the

Export Administration Act did not violate the Nondelegation

Doctrine. 974 F.2d 1037 (9th Cir.1992), cert. denied, 507 U.S

917 (Feb. 22, 1993). Bozarov argued the “purpose of requiring

an intelligible principle is to permit a court to ascertain

whether the will of Congress has been obeyed.” Id. at. 1041

However, the Ninth Circuit panel agreed with the Govern

ment’s argument that “the purpose of an intelligible principle is

simply to channel the discretion of the executive and to permit

Congress to determine whether its will 1s being obeyed.” /d. The

panel analyzed the Yakus, American Power, and Touby deci-

sions and stated that, while the cases suggested the availability

of judicial review was a factor to consider, the Supreme Court

did not hold judicial review was always constitutionally re-

quired. Jd. at 1042. See also United States v. Garfinkel, 29 F.3d

451, 459 (8th Cir.1994) (suggesting the existence of judicial re-

view is a factor to be considered in determining whether Con

yress has unconstitutionally delegated its legislative authority).

7 Section 102, as amended, provides any “interlocutory or final

judgment, decree, or order of the district court may be reviewed

only upon petition for a writ of certiorar) to the Supreme Court

of the United States.” REAL ID Act, Pub. L. No. 109-13,

30a

Plaintiffs’ argument requiring the need for judicial

review of the scope of the Secretary’s waivers fails.

(2) Plaintiffs’ Presentment Clause Chal

lenge

(a) Applicable Law

Article 1 of the Constitution provides any federal

statute must pass both houses of Congress, and “be-

fore it become a Law, be presented to the President

of the United States: If he approve he shall sign it,

but if not he shall return it, with his Objections to

that House in which it shall have originated, who

shall enter the Objections at large on their Journal,

and proceed to reconsider it.”°° “Amendment and re-

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

form with” the presentment and bicameralism re

quirements of Article [.°!

In Clinton v. City of New York,®? the Supreme

Court struck down the Line Item Vete Act of 1996

because “li]Jn both legal and practical effect,” it au

thorized the President to amend “Acts of Congress by

repealing a portion of each.’ The Line Item Veto

Act gave the President the power to cancel items of

spending which had been previously signed into

law.°* Upon cancellation by the President, these

items no longer had anv “legal force or effect” what

§ 102(c)(2)(A), 119 Stat. 231, 306 (2005), codified at 8 U.S.C

L103 note

YU.S. CONST. art. 1, § 7 (Presentment Clause

INS v. Chadha, 462 S 919 954 (1983

124 U.S. 41 }

/ ot A548

34a

soever.®”> The Supreme Court observed the laws re-

sulting from the President’s statutory cancellation

powers produced “truncated versions of two bills that

passed both Houses of Congress” and held the Con-

stitution does not authorize the President “to enact,

to amend, or to repeal statutes.”’

(b) Discussion

Plaintiffs argue the Waiver Legislation violates

the Presentment Clause of the Constitution because

it acts as a “partial repeal” of the law, which the Su-

preme Court found unconstitutional in Clinton, when

it invalidated the Line Item Veto Act.®® Plaintiffs

contend the Waiver Legislation violates the Pre-

sentment Clause because it “amend|s]| more than

three dozen congressional enactments ‘in both legal

and practical effect’ by rendering them inoperative

‘in their entirety in nearly 500 miles of designated

Project Areas.”°’ They argue the Waiver Legislation

truncates duly enacted laws, a result the Supreme

Court held unconstitutional in Clinton.

The Defenders of Wildlife court addressed a simi-

lar argument to Plaintiffs’ at length, holding “the

waiver provision of the REAL ID Act [Waiver Legis-

lation] is not equivalent to the partial repeal or

amendment at issue in Clinton.”®! The district court

ld. at 137 (citation omitted)

35a

observed that in Clinton, it was critical to the Su-

preme Court that the Line Item Veto Act “[gave] the

President the unilateral power to change the text of

the duly enacted statutes.”62 However, when the Sec-

retary invokes Section 102, the Defenders of Wildlife

court noted

[t]he Secretary has no authority to

alter the text of any statute, repeal

any law, or cancel any statutory pro-

vision, 1n whole or in part. Each of

the twenty laws waived by the Secre-

tary... retains the same legal force

and effect as it had when it was

passed by both houses of Congress

and presented to the President.®

In response to the plaintiffs’ argument that the

Waiver Legislation constituted a partial repeal be-

cause the laws did not apply to the extent they oth-

erwise would have regarding the construction of the

border barriers, the Defenders of Wildlife court cited

to numerous other statutorily-authorized executive

waivers, which would also be invalid under this logic,

and found Clinton’s holding coe ld not support this

conclusien.®4

After carefully considering the relevant law and

noting Plaintiffs fail to adequately develop their ar-

gument, the Court concludes the Waiver Legislation

dves not violate the Presentment Clause. The Court

recognizes the cogent analysis set forth in Defenders

of Wildlife and concludes that unlike the laws at is-

62 Jd. (quoting Clinton, 524 U.S. at 447)

36a

sue in Clinton, which no longer had any “legal force

or effect” whatsoever once the President applied the

line-item veto, the laws waived pursuant to Section

102 still overwhelmingly remain in effect outside the

limited scope of the Secretary’s waiver.

(3) Plaintiffs’ Tenth Amendment Challenge

(a) Applicable Law

Article VI of the Constitution provides the “Con-

stitution|] and the Laws of the United States which

shall be made in Pursuance thereof: and al! Treaties

made, or which shall be made under the Authority of

the United States, shall be the supreme Law of the

Land.”® Pursuant to the Supremacy Clause, if there

is a conflict between federal law and state or local

law, the latter is deemed preempted.

Pre-emption may be either expressed

or implied, and “is compelled whether

Congress'[s] command is explicitly

stated in the statute’s language or

implicitly contained in its structure

and purpose.” Absent explicit pre-

emptive language, we have recog-

nized at least two types of implied

pre-emption: field pre-emption,

where the scheme of federal regula-

tion 1s ““so pervasive as to make rea-

sonable the inference that Congress

left no room for the States to supple-

ment it,” and conflict pre-emption,

U.S. ConsT. art. VI, cl. 2 (“Supremacy Clause”)

"6 See Gade v. Natl Solid Wastes Mymt. Ass'n. 505 U.S. 88. 108

(1992) (deriving preemption from the Supremacy Clause)

37a

where “compliance with both federal

and state regulations is a physical

impossibility,” or where state law

“stands as an obstacle to the accom-

plishment and execution of the full

purposes and objectives of Con-

gress.”67

Moreover, “[f]ederal regulations have no less pre-

emptive effect than federal statutes.”*§

In Gregory v. Ashcroft,®% Missouri state court

judges challenged a provision of the Missouri state

constitution, which set a mandatory retirement age,

as violating the federal Age Discrimination in Em-

ployment Act of 1967 (“ADEA”). The Supreme Court

held a federa! law will be applied to important state

government activities only if there is a clear state-

ment from Congress that the law was meant to ap-

ply.*° The Supreme Court noted “’[i]n traditionally

sensitive areas, such as legislation affecting the fed-

eral balance, the requirement of clear statement as-

sures that the legislature has in fact faced, and in-

tended to bring into issue, the critical matters in-

volved in the judicial decision.’”’! The Supreme

Court explained this rule of statutory construction

67 Td. at 9S (citations omitted).

68 Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141,

153 (1982).

69501 U.S. 452 (1991).

70 Jd. at 460-61.“If Congress intends to alter the ‘usual constitu

tional balance between the States and the Federal Govern-

ment,’ it must make its intention to do so ‘unmistakably clear in

the language of the statute.” /d. at 460 (citation omitted).

"! Id. at 461 (citation omitted) (internal quotation marks omit-

ted).

38a

should be applied when the statutory language was

ambiguous.’* The Supreme Court found the ADEA

lacked such a clear statement and held the statute

did not preempt the Missouri mandatory retirement

age provision.’?

In New York v. United States,74 the Supreme

Court invalidated the 1985 Low-Level Radioactive

Waste Policy Amendments Act (“the Act”) because it

violated the Tenth Amendment.” The Act created a

statutory duty for states to provide for the safe dis-

posal of radioactive wastes generated within their

borders.*® The Act provided monetary incentives to

the states to comply with the law and included a

“take title” provision, which imposed state liability if

the states did not properly dispose of waste within

their borders.’’ The Supreme Court held the “take ti-

tle” provision was unconstitutional because it gave

state governments the choice between “either accept-

ing ownership of waste or regulating according to the

instructions of Congress,”’* both of which were im-

permissible options for Congress to impose on the

states. The Supreme Court held, pursuant to the

Tenth Amendment, the federal government may not

commandeer state officials “to enact or administer a

‘Id. at 470.

"4 Id.

74505 U.S. 144 (1992)

* The Tenth Amendment provides, “The powers not delegated

to the United States by the Constitution, nor prohibited by it to

the States, are reserved to the States respectively, or to the

people.” U.S. CONST. amend. X

76 New York, 505 U.S. at 152

7 Id. at 152-54.

* Id. at 175.

39a

federal regulatory program.”79 “While Congress has

substantial powers to govern the Nation directly, in-

cluding in areas of intimate concern to the States,

the Constitution has never been understood to confer

upon Congress the ability to require the States to

govern according to Congress’|s] instructions.”8" The

Supreme Court explained if Congress was allowed to

commandeer state governments, it would undermine

government accountability because Congress could

make decisions, but the states would take the politi-

cal heat and be held responsible for a decision that

was not theirs.®!

(b) Discussion

Plaintiffs argue Section 102(c) does not contain a

“clear statement” indicating Congress’s intent to pre-

empt state or local law because the section only

states the Secretary has authority “to waive all legal

requirements.”*? The Supreme Court has stated that

courts should apply the clear statement rule only

when the statutory language is ambiguous.* Here,

the language is not ambiguous. Section 102 can be

construed as an express preemption clause because

Congress expressly gives the Secretary authority,

“notwithstanding any other provision of law,” to

“waive all legal requirements.” The Secretary clari-

7 Jd. at 188.

89 Jd at 162

“t Td. at 168-69.

* Pls.” Application at 18

“83 Gregory, 501 U-S. at 470.

S’ REAL ID Act, Pub. L. No. 109-13, § 102(c)(1). 119 Stat. 231,

306 (2005), codified at 8 U.S.C. § 1103 note.

40a

fies that “all legal requirements” includes “state or

other laws, regulations and legal requirements of,

deriving from, or related to the subject of’ various

federal statutes explicitly waived “with respect to the

construction of roads and fixed and mobile barri-

ers.”85 Section 102 clearly manifests congressional

intent to nullify other laws to the extent necessary to

expeditiously construct the border fence.*

Moreover, even if the Waiver Legislation does

not contain explicit preemptive language, the Su-

preme Court still recognizes “conflict preemption,”

where “state law ‘stands as an obstacle to the accom-

plishment and execution of the full purposes and ob-

jectives of Congress.”®’ The Secretary, pursuant to

the Supremacy Clause, has only waived state and lo-

cal laws which interfere with Congress’s purpose to

construct the border barrier. If Plaintiffs were al-

lowed to enforce state and local laws which impede

construction of the border infrastructure, Plaintiffs’

actions would directly conflict with Congress’s objec-

tive of expeditiously constructing a border fence.

Therefore, to the extent Plaintiffs’ enforcement of

state and local laws interfere with meeting the fed-

eral objective, the state and local laws are pre-

empted.

‘

Plaintiffs argue the “waivers are so bread and so

vague as to state and local laws that they violate ba-

sic principles of federalism by placing the govern-

85 See Determination Pursuant to Section 102 of the IIRIRA, 73

Fed. Reg. at 19077, 19078.

56 See Gade, 505 U.S. at 96 (noting that whether federal law

preempts state law requires an examination of congressional

intent).

57 Id. at 98 icitations omitted).

4la

mental Plaintiffs in the intolerable position of not

knowing which state and local laws are currently in

effect and which may have been indefinitely nulli-

fied.”83 The Secretary’s waivers set aside all “federal,

state or other laws, regulations and legal require-

ments of, deriving from, or related to the subject of”

the various federal statutes explicitly waived and the

project.89 After carefully reviewing the Waiver Legis-

lation, the Court concludes the Secretary’s waivers

do not affect the validity of the state and local laws.

Rather, the waivers merely suspend the effects of the

state and local laws. The state and local laws remain

operative to the extent they have not been preempted

by the Waiver Legislation according to its own terms,

1.e., those laws that do not interfere with the expedi-

tious construction of the border fence.

Plaintiffs also argue the Secretary’s waivers of

state and local laws have “commandeered” state and

local governments in violation of the Tenth Amend-

ment. Plaintiffs claim “the waivers relieve the bur-

den of political accountability from congressional

lawmakers and place it squarely on the shoulders of

local officials who did not in any way participate in

the decisionmaking process.”%® Thus, Plaintiffs argue

if local officials are unable to perform services for

citizens because of the waivers. such as districts de-

livering water, these officers will nevertheless have

to shoulder the blame, even though it was not their

idea to waive the state or local laws.9! Plaintiffs fur-

88 Pls.’ Application at 13.

89 See Determination Pursuant to Section 102 of the ILRIRA, 73

Fed. Reg. at 19077, 19078.

%” Pls.’ Application at 17.

91 Jd.

42a

ther contend the “costs resulting from the waiver and

subsequent construction will be foisted upon the gov-

ernmental Plaintiffs, forcing them to spend Texas

taxpayers’ dollars to administer the federal govern-

ment’s construction plan.”

Plaintiffs spend two pages alleging the Seere-

tary’s waivers “devour([s] the essentials of state sov-

ereignty’ by “commandeering” its state and _ local

governments, but Plaintiffs do not provide any sup-

port for this conclusion. Unlike the legislation in New

York, the Waiver Legislation does not require Plain-

tiffs to enact laws and implement a federal program.

The Waiver Legislation merely preempts Plaintiffs

from enforcing state and local laws that would im-

pede Congress’s ability to expeditiously construct the

border fence. Therefore, Plaintiffs’ argument they

will have to spend extra money to maintain the fed-

eral construction plan is without merit because

Plaintiffs are not implementing the construcion

plan, but rather are fulfilling their duty to maintain

the Water District’s infrastructure. Moreover, al-

though Plaintiffs’ argument that local officials will

take the blame for decisions they did not make

tracks the Supreme Court’s explanation in New York,

it is not a persuasive argument for impeding federal

construction of the border barriers, especially be-

cause Plaintiffs are not implementing a federal 3ro-

gram.

The Waiver Legislation does not violate the

Tenth Amendment. Section 102 clearly manif2sts

congressional intent to preempt state and local laws

which would interfere with Congress's objective to

expeditiously construct the border fence. Moreover,

92 Jd. at 18

43a

even if Section 102 does not contain explicit preemp-

tive language, the Waiver Legislation still preempts

these laws, pursuant to the Supreme Court’s expla-

nation of conflict preemption. Because Plaintiffs’ fed-

eralism arguments are more rhetorical than substan-

tive, Plaintiffs’ argument fails because they have not

clearly shown how the Secretary’s waivers affects

Plaintiffs’ sovereignty.

(4) Summary of Plaintiffs’ Challenges

Plaintiffs fail to satisfy the first factor for grant-

ing a preliminary injunction. Plaintiffs have not es-

tablished there is a substantial likelihood they will

prevail on the merits because Plaintiffs’ Nondelega-

tion Clause, Presentment Clause, and Tenth

Amendment challenges are unavailing.

B. Factor Two: Substantial Threat Plaintiffs Will

Suffer Irreparable Injury if the Injunction is

Not Granted

Plaintiffs claim the construction of the border

barriers will irreparably injure Plaintiffs and the

public. Specifically, Plaintiffs allege the Waiver Leg-

islation will impair the Water District’s “ability...

to deliver water to the City of E] Paso and to thou-

sands of farmers throughout the County of E] Paso

who contract with the [Water] District for their wa-

ter supply.”9% The Water District maintains the

Waiver Legislation will damage its facilities and in-

frastructure, interfere with canal maintenance, and

“generate debris crippling to the [Water] District’s

%3 Pls.” Application, Reyes Decl. 4 7.

44a

flood control infrastructure.”*4 Plaintiffs also argue

the construction will affect Ysleta del Sur Pueblo be-

cause it will obstruct the tribal community’s access to

land located by the Rio Grande River, which they use

for religious ceremonies.” Finally, Plaintiffs argue

the construction of the H.dalgo County levee would

irreparably damage the Lower Rio Grande Valley’s

wildlife corridor because it would “create a physical

barrier impenetrable to wildlife” and would “threaten

the survival of numerous species, including the en-

dangered ocelot and jaguarundi.”®®

Plaintiffs’ allegations of harm are conclusory and

thus insufficier:t to establish a concrete or irrepara-

ble harm. Plaintiffs allege broad, speculative, and

all-encompassing injuries without reasonable speci-

ficity. The allegations regarding the harms that

would impair the Water District simply consist of

conclusory assertions.

The alleged harm to the Ysleta Del Sur Pueblo is

reasonably specific. In response, Defendants submit

the tribal community will not lose access to the en-

tire Rio Grande River because the construction will

not close any of the tribe’s current crossing points.97

Defendants assert current construction plans actu-

ally will increase the tribe’s access to the Rio Grande

River by adding seven additional crossing points.%

In response to Plaintiffs’ allegations of harm to

the wildlife and the environment, Defendants main-

% Id. 4 8.

% Pls.’ Application, Paiz Decl. 4§ 3-4.

36 Pls.” Application, Bartholomew Decl. 4 6, 11

4? Defs.’ Resp., Ahern Decl. {| 22.

98 Jd.

45a

tain DHS is aware of the potential hazards construc-

tion may cause in the Lower Rio Grande Valley and

DHS has taken steps to mitigate these hazards. De-

fendants present three specific mitigation measures

which address Plaintiffs’ allegations. First, DHS has

proposed “installing over 400 ‘cat holes’ that allow for

passage of small animals, including the Ocelot and

Jaguarundi cats” and “modif[ying] the fence design

to create a four inch gap at the bottom of the fence to

allow small animals — in particular the Texas horned

lizard — passage.”9? Second, DHS is also completing

Environmental Stewardship Plans (“ESP”), which

provide a comprehensive analysis of the potential

environmental impacts associated with the construc-

tion of the fence.”!°° The ESPs “include the identifi-

cation and analysis of potential tmpacts to endan-

gered species... and contain appropriate Best Man-

agement Practices to avoid or minimize” these poten-

tial impacts.!®°! Finally, DHS has set aside $24

million to “mitigate impacts to threatened and en-

dangered species, wetlands, and cultural and historic

resources.” !?2

It is unclear whether DHS’s proposed measures,

including the amount of allocated federal funds and

the implementation of Best Management Practices to

avoid or minimize impacts to threatened and endan-

gered species and environmentally sensitive areas,

are adequate to mitigate or remedy reasonably an-

ticipated problems which may occur in the construc-

tion zone. Nevertheless, Defendants have provided

99 Td. | 17.

lw Jd. 49 16

Ol Jd.

102 Jd. § 17.

46a

extensive information on measures which address

Plaintiffs’ concerns. The Court concludes Plaintiffs

fail to satisfy the second factor for granting a pre-

liminary injunction. Plaintiffs have not shown there

is a substantial threat they will suffer irreparable in-

jury if the Court does not grant a preliminary injunc-

tion.

C. Factors Three and Four: Threatened Injury to

Plaintiffs Outweighs the Threatened Injury to

Defendants and Granting the Preliminary In-

junction Will Not Adversely Affect the Public

Because the third and fourth factors for granting

a preliminary injunction are closely related, the

Court will address both factors in this section. Plain-

tiffs argue the alleged harms they have presented far

outweigh the alleged harms to DHS.'% Plaintiffs con-

tend the “only conceivable injury that DHS could suf-

fer [from suspending construction pending resolution

of this litigation] is some economic cost from altering

construction timetables, which would likely be

minimal since construction is not yet in progress.”!!4

Further, while Plaintiffs concede the public has an

interest in securing its border, they argue this inter-

est “must be weighed against the interests served by

the dozens of federal, state, and local laws that the

Secretary would set aside to achieve this goal,” 10°

Defendants counter “the injury to DHS in its ef

forts to enforce the immigration laws, as well as the

public interest in receiving the benefit of those laws,

103 Pls.’ Application at 23

104 ld

105 Td

47a

is substantial.” Defendants contend the border

barriers will significantly reduce the number of un-

documented immigrants who cross from Mexico into

Texas,!°’ which will in turn “reduce the threat to

public health and safety because past apprehensions

demonstrate that approximately 20% of illegal aliens

had criminal records.”!°% Defendants argue the pub-

lic interest is also served by the border barriers’ con-

struction because it reduces the adverse environ-

mental! effects caused by illegal immigration. Specifi-

cally, Defendants note illegal entrants create roads

and trails, which divert the norma! flow of water and

destroy sensitive vegetation; illegal entrants leave

behind large quantities of trash, human waste, and

abandoned vehicles; and “.. . illegal entrants fill wa

ter bottles in wetland locations, [which] can infest

these protected Federal wetlands with invasive para-

sites and diseases |and] doom native fish and wild-

life.” 109

After carefully considering the parties’ argu-

ments, the Court concludes Plaintiffs fail to success-

fully develop their claim that preserving the waived

laws outweighs the public’s interest in securing its

borders. Because Defendants’ arguments clearly

demonstrate DHS and the public will be adversely

affected if the preliminary injunction 1s granted, the

Court concludes Plaintiffs have failed to establish

the third and fourth factors for granting a prelimi-

106 Defs.’ Resp. at 23

17 Defs. Resp., Ahern Decl. § 8 (ncting a substantial decline in

apprehensions of undocumented immigrants after completion of

border barriers in the CBP San Diego Sector). :

108 See id. VY V5

103 Td. VF 19-20.

48a

nary injunction. Plaintiffs have not shown the

threatened injury to them outweighs the threatened

injury to Defendants, nor have Plaintiffs demon-

strated that granting the preliminary injunction will

not adversely affect the public interest.

IV. CONCLUSION

Kor the reasons discussed, the Court concludes

Plaintiffs have failed to establish the four factors for

granting a preliminary injunction and the Court

should, and hereby does, DENY Plaintiffs’ Applica-

tion for Preliminary Injunction [Rec. No. 19]. Accord-

ingly, Plaintiffs’ pending motion, “Plaintiffs’ Unop-

posed Motion for Hearing Regarding Motion for Pre-

liminary Injunction” [Rec. No. 27], is DENIED AS

MOOT.

SO ORDERED.

SIGNED this 29% day of August, 2008.

[signed] _

FRANK MONTALVO

UNITED STATES DISTRICT JUDGE

49a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

EL PASO DIViSION

COUNTY OF EL PASO, et al.,

Plaintiffs,

MICHAEL CHERTOFF, Secretary, U.S. De-

partment of Homeland Security, and U.S. DE-

PARTMENT OF HOMELAND SECURITY,

Defendants.

E P-08-CA-196-FM

Sept. 11, 2008

ORDER GRANTING DEFENDANTS’

MOTION TO DISMISS

On this day, the Court considered Michael Cher-

toff, Secretary of the Department of Homeland Secu-

rity (“Chertoff or “Secretary”), and the Department

of Homeland Security's (“DHS”) (collectively, “Defen-

dants”) “Motion to Dismiss” (originally filed as

“Memorandum of Points and Authorities in Opposi-

tion to Plaintiffs’ Application for Preliminary Injunc-

tion and in Support of Defendants’ Motion to Dis-

miss’) [Rec. No. 21], filed June 24, 2008, in the

above-captioned cause. In their Motion to Dismiss,

Defendants request the Court to dismiss Plaintiffs’

Complaint because it fails to state a claim upon

which relief can be granted. On July 8, 2008, County

of El Paso, City of El Paso, Fl Paso County Water

50a

Improvement District No.1, Hudspeth County Con-

servation and Reclamation District No. 1, Ysleta Del

Sur Pueblo, Frontera Audubon Society, Friends of

the Wildlife Corridor, Friends of Laguna Atascosa

National Wildlife Refuge, and Mark Clark (collec-

tively, “Plaintiffs”) filed their “Brief Opposing Defen-

dants’ Motion to Dismiss” (originally filed as “Reply

Brief in Support of Plaintiffs’ Application for Pre-

liminary Injunction and Brief Opposing Defendants’

Motion to Dismiss”) [Rec. No. 23]. “Defendants’ Reply

Memorandum in Support of Defendants’ Motion to

Dismiss” [Rec. No. 26] followed on July 21, 2008. Af-

ter carefully considering the parties’ briefs, argu-

ments, and applicable law, the Court concludes it

should grant Defendants’ Motion to Dismiss.

I. BACKGROUND

On June 2, 2008, Plaintiffs filed their “Complaint

for Declaratory and Injunctive Relief (“Complaint”)

(Rec. No.1]. In their Complaint, Plaintiffs raise three

constitutional challenges to Chertoff s congression-

ally-delegated waiver authority:! (1) a Nondelegation

challenge pursuant to Article I, Section 1, of the Con-

stitution, (2) a Presentment Clause challenge pursu-

ant to Article I, Section 7, of the Constitution, and (3)

a federalism challenge pursuant to the Constitution’s

Tenth Amendment. On June 23, 2008, Plaintiffs filed

their “Application for Preliminary Injunction” [Rec.

| In 2005, pursuant to the REAL ID Act, Congress gave the Sec-

retary, “notwithstanding any other provision of law... the

authority to waive all legal requirements such Secretary .. . de-

termines necessary to ensure expeditious construction of the

barriers and roads under this section.” (“Waiver Legislation’),

Pub. L. No. 109-13, § 102, 119 Stat. 231, 306 (2005), codified at

§U S.C. § 1103 note (“Section 102”)

5la

No. 19], requesting the Court to enjoin Defendants

from constructing any fencing, walls, or other physi-

cal barriers along the United States-Mexico border in

Texas, New Mexico, Arizona, and California, unless

and until DHS complies with the laws waived by

Chertoff on April 3, 2008.2 On August 29, 2008, the

Court entered its “Memorandum Opinion and Order

Denying Plaintiffs’ Application for Preliminary In-

junction” (“Memorandum Opinion and Order’) [Rec.

No. 28].

Il. MOTIONS TO DISMISS PURSUANT

TO FEDERAL RULE OF CIVIL PRO-

CEDURE 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) (“Rule

12(b)(6)”) authorizes dismissal of a complaint for

“failure to state a claim upon which relief can be

granted.”

2 Gn April 3, 2008, Chertoff exercised his authority, pursuant to

Section 102, and published two notices in the Federal Register

waiving “ali federal, state, or other laws, regulations and legal

requirements of, deriving from, or related to the subject of”

various federal statutes explicitly waived “with respect to the

construction of roads and fixed and mobile barriers” along the

Jnited States-Mexican border. See Determination Pursuant to

Section 102 of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, as Amended, 73 Fed. Reg. 19077

(“Hidalgo County Waiver”) & 19078 (“Multi-state Waiver”) (Apr.

8, 2008). Specifically, Chertoff waived twenty-seven laws to fa-

eilitate construction of barriers and roads along twenty-two

miles of the Texas-Mexico border in Hidalgo County, Texas. Id

at 73 Fed. Reg. 19077. Chertoff also waived thirty-seven laws to

facilitate construction of barriers and roads along 470 miles of

the United States-Mexico border in Texas, New Mexico, Ari-

zona, and California. /d at 73 Fed. Reg. 19078.

3 FED. R. Civ. P. 12(b)(6).

52a

To survive a Rule 12(b)(6) motion to dismiss, the

plaintiff must plead enough facts to state a claim to

relief that is plausible on its face. Factual allegations

must be enough to raise a right to relief above the

speculative level, on the assumption that all the alle-

gations in the complaint are true (even if doubtful in

fact.4

Nonetheless, a “motion to dismiss for failure to

state a claim is viewed with disfavor and is rarely

granted.”> “The task of the court in ruling on a Rule

12(b)(6) motion ‘is merely to assess the legal feasibil-

ity of the complaint, [and] not to assay the weight of

the evidence which might be offered in support

thereof.” Thus, when considering a Rule 12(b)(6)

motion, a court must accept all well-pleaded facts as

true, and construe all reasonable inferences in the

light most favorable to the plaintiffs.? Although the

4 Vanderbrook v. Unitrin Preferred Ins. Co. (In re Katrina Canal

Breaches Litigation), 495 F.3d 191, 205 & 205 n.10 (5th Cir.

2007) (internal quotations and citations omitted) (citing Bell

Atl. Corp. v. Twombly, __ U.S. _.,.__, 127 S. Ct. 1955, 1974

(2007)) (noting the Supreme Court’s clarification of the mini-

mum standard of adequate pleading governing a complaint’s

survival).

> Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards,

Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).

6 Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) (quoting

Ryder Energy Distribution Corp. v. Merrill Lynch Commodities

Inc., 748 F.2d 774, 779 (2d Cir. 1984)).

7 See Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); Capital

Parks, Inc. v. Se. Adver. & Sales Sys., Inc., 30 F.3d 627, 629 (Sth

Cir. 1994): see also Jolly v. Klein, 923 F. Supp. 931, 942 (S_D.

Tex. 1996) (“A motion to dismiss under FED. R. CIv. P. 12(b)(6)

for failure to state a claim tests only the formal sufficiency of

the statements of the claims for relief. It 1s not a procedure for

resolving contests about the facts or the merits of the case.”).

dda

Court must accept well-pleaded allegations in a com-

plaint as true, it does not afford conclusory allega-

tions similar treatment.

lil. DISCUSSION

In their Cornplaint, Plaintiffs raise three consti-

tutional challenges to the Waiver Legislation: (1) a

Nondelegation challenge pursuant to Article I, Sec-

tion 1, of the Constitution, (2) a Presentment Clause

challenge pursuant to Article I, Section 7, of the Con-

stitution, and (3) a federalism challenge pursuant to

the Constitution’s Tenth Amendment. In their Mo-

tion to Dismiss, Defendants argue “[P}laintiffs’

[C]omplaint should be dismissed with prejudice [be-

cause] the Waiver Legislation is clearly constitu-

tional and there are no relevant factual disputes that

would prevent dismissal.”9

The Court previously analyzed Plaintiffs’ consti-

tutional challenges at length in the Memorandum

Opinion and Order it entered on August 29, 2008, in

which it denied Plaintiffs’ Application for Prelimi-

nary Injunction. First, the Court found the Waiver

Legislation did not violate the Nondelegation Clause

because “Congress constitutionally delegated its

authority in the Waiver Legislation [when] it pro-

vided the Secretary with an intelligible principle to

guide his discretionarv waiver of legal requirements

to expeditiously complete construction of physical

barriers and roads at the nation’s borders.”!® The

* See Kaiser, 677 F.2d at 1050 (citing Associated Builders, Inc.

v. Ala. Power Co., 505 F.2d 97, 100 (Sth Cir. 1974)).

*>Defs.’ Mot. to Dismiss at 24

'* Mem. Op. & Order Den. Pls. Applic. Prelim. Inj. at 9.

54a

Court also found “the Supreme Court does not. re-

quire judicial review to satisfy the intelligible princi-

ple standard.”!!

Second, the Court found the Waiver Legislation

did not violate the Presentment Clause because “un-

like the laws at issue in Clinton |v. City of New

York],!2 which no longer had any “legal force or ef-

fect” whatsoever once the President applied the line-

item veto, the laws waived pursuant to Section 102

still overwhelmingly remain in effect outside the hm-

ited scope of the Secretary’s waiver.”!* Finally, the

Court found the Waiver Legislation did not violate

the Tenth Amendment because “Section 1 02 clearly

manifests congressional intent to preempt state and

local laws which would interfere with Congress’s ob-

jective to expeditiously construct the border fence.

Moreover, even if Section 102 does not contain ex-

plicit preemptive language, the Waiver Legislation

still preempts these laws, pursuant to the Supreme

Court’s explanation of conflict preemption.” !4

The Court finds its Memorandum Opinion and

Order is dispositive of Plaintiffs’ constitutional

claims for purposes of Defendants’ Motion to Dis-

miss. Therefore, 1n construing all reasonable infer-

ences in the light most favorable to Plaintiffs, the

Court concludes Plaintiffs’ Complaint should be dis-

1 Jd. at 11.

12 524 U.S. 417 (1998). In Clinton, the Supreme Court struck

down the Line Item Veto Act of 1996 because “[iJn both legal

and practical effect,” it authorized the President to amend “Acts

of Congress by repealing a portion of each” in viclation of the

Presentment Clause. Id. at 438.

13 Mem. Op. & Order Den. Pls.’ Applic. Prelim. Inj. at 16

14 Jd. at 22

vvoa

missed for failure to state a claim upon which relief

can be granted.

IV. CONCLUSION AND ORDERS

For the reasons discussed, the Court concludes it

should, and hereby does, GRANT Defendants’ Mo-

tion to Dismiss [Rec. No. 21]. The Court DIS-

MISSES the _ above-captioned cause WITH

PREJUDICE.

SO ORDERED.

SIGNED this 11t® day of September, 2008.

[signed]

FRANK MONTALVO

UNITED STATES DISTRICT JUDGE

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.