# Petition for Writ of Certiorari — County of El Paso, Texas v. Napolitano (No. 08-751) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0877%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2008 ## Text smpree | wai U.S. 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, Ws 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 i 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. il 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 COUTTS TICS PICS OOD 6 vcs cvesccsccccccdevvecsssacseceenepss 1 FOUE 14.16) BLATT EIMENT. ..cccscsecssvscsvssessvecsevceesves il FEE is SOM STALE EGE weiincescvsceesscesiceserccvesscecoxenas il "TARR hake SIE PT ER EE onsen sasnerevevccceseassedaecuscates v1 CPE Be YN a osicincy sss vicin savnwibeedesenevecoresenesansiun 1 es FI ete es a eres 1 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 1V 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 | 4 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 vl 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 1X 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 x 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 x] 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. «§ & & (c) Waiver.— (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 Register. + 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. (C) Ability to seek appellate review. An interlocutory or final judgment, decree, or order of the district court may be reviewed only upon petition for a writ of certiorari to the Supreme Court of the United States. 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 4 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.: — oO 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 6 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. 7 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- 8 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 2 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- 10 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 11 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- 12 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- 1 | 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) 13 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 14 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.). 15 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 16 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- 17 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 18 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- 19 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. 20 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, 21 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“? *? 22 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 23 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 24 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.”). 25 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 26 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- 27 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- 28 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 29 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. 30 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. 31 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 32 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 33 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. 34 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 la 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 2a 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. 3a 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 4a 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- da 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 6a to accomplish the provisions of section 102 of the IIRIRA, as amended. Michael Chertoff, Secretary. 7a 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. 8a 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 Ya 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 rt la 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 coge [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0877%3A1. Public record. Not legal advice.