Amicus Curiae Brief — County of El Paso, Texas v. Napolitano (No. 08-751)

"} (% wo. 08-751 TAN, 12,2009

IN THE

Supreme Court of the Anited States

COUNTY OF EL PASO, ET AL.,

Petitioners,

V.

MICHAEL CHERTOFF, SECRETARY,

U.S. DEPARTMENT OF HOMELAND SECURITY, AND

U.S. DEPARTMENT OF HOMELAND SECURITY,

Respondents.

On Petition for a Writ of Certiorari to the

United States District Court for the

Western District of Texas

BRIEF OF AMICI CURIAE

THE CITY OF EAGLE PASS, TEXAS, AND

OTHER CITIES AND OTHER AFFECTED

PERSONS ALONG THE TEXAS-MEXICO

BORDER IN SUPPORT OF PETITIONERS

KENNETH J. PFAEHLER MICHAEL H. BARR

SHEJAL V. DESAI Counsel of Record

Of Counsel SONNENSCHEIN NATH &

SONNENSCHEIN NATH & ROSENTHAL LLP

ROSENTHAL LLP 1221 Avenue of the Americas

1301 K Street, N.W. New York, New York 10020

Suite 600, East Tower (212) 768-6788

Washington, D.C. 20005

(202) 408-6468

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

i

TABLE OF CONTENTS

Page

pyt Rot oe. 8 igh). Snr ii

IIE serteeacicctcieateepderseecis vesraiencionsenbeneciss

INTEREST OF THE AMICT ..................:.0ccceeeeees

SUMMARY OF ARGUMENT .....................:0eeeee

RE estat Uolischinecehtee stasis cg Dac aadeninteneacaies 10

I. SECTION 102(c) OF ITIRIRA PRESENTS

A UNIQUELY BROAD DELEGATION

WITHOUT JUDICIAL REVIEW ............... 10

Il. A WRIT OF CERTIORARI SHOULD

ISSUE TO CONSIDER WHETHER A

FEDERAL EXECUTIVE BRANCH

AGENCY CAN NULLIFY STATE

LAWS ON ITS OWN AUTHORITY .......... 14

Ill A WRIT OF CERTIORARI SHOULD

ISSUE TO CONSIDER WHETHER

BROAD DELEGATIONS TO _ UN-

ELECTED MEMBERS OF _ THE

EXECUTIVE BRANCH REQUIRE

THE AVAILABILITY OF JUDICIAL

SRS eeanbesanains 18

Se I ois snvesvavedouseenseunncvaens ALOE 24

APPENDIX A—List of Amict ..........cccccocccccccccccces la

APPENDIX B—Congressional Research Service

Memorandum, Section 102 of H.R. 418,

Waiver of Laws Necessary for Improvement

of Barriers at Borders, Feb. 9, 2005................ 2a

i

TABLE OF AUTHORITIES

CASES Page(s)

Abbott Laboratories v. Gardner,

SS Ss ee 19

Alden v. Maine,

ee 14

Amalgamated Meat Cutters v. Connally,

go/ ©. Sump. 737 (D.D.C. 1971)................ 19, 22

Clinton v. City of New York,

I Ee 0 os sscrcacescessnsesessesevescees 11

CSX Transp., Inc. v. Easterwood,

eS.) 16

Department of Interior v. South Dakota,

Ee ae 22

Ethyl Corp. v. Environmental Protection

Agency, 541 F.2d 1 (D.C. Cir. 1976),

cert. denied,

ES EE RI inicrrencncscsspevesernsvesoesene 20

Fidelity Federal Savings and Loans Ass’n

v. del Cuesta,

RT, BEE © NOI. nnceccaececrsesesevesesesevuesecs 16

Florida Lime & Avocado Growers, Inc.

v. Paul,

OE eS) sae 15

Gregory v. Ashcroft,

Te ME 6 I eine cc ccicncenvesconsecsccceceoenc 7,14

Hines v. Davidowitz,

Be I NE BE Oi eaccrescsiccscencncesccsucesesserss 15

INS v. Chadha,

Be Bie Ee AB i esinecsccceconsrnivessevenesecess 9,18

ill

TABLE OF AUTHORITIES

Page(s)

Mistretta v. United States,

aR OE |) 9,18

Morales v. Trans World Airlines, Inc.,

so Be Be 22: | ees 16

Printz v. United States,

Ce 0 i ee BE nr voter cecsnnensecsetvencanxees 14

Shalala v. Illinois Council on Long Term

Care, dmc... S20 US: 1 CASED). inc .ccccccsvenss. 19

Skinner v. Mid-America Pipeline Co.,

BER Re ks 2. re ne 9,10, 18

South Dakota v. Department of Interior,

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

ee ee OE oie cn cavessacvccuconapsevancesnens 22

Tafflin v. Levitt,

Me yr, Ge CR a ve cinscsevececaccesessescscescnns 14

Touby v. United States,

Fe HU 6 IE vi ecnsnsnscensececedcuncesncsavvsasses 9,18

United States v. Bozarov,

974 F.2d 1037 (9th Cir. 1992),

cert. denied, 507 U.S. 917 (1993).............. 23

United States v. Hammoud,

381 F.3d 316 (4th Cir. 2004) (en banc),

vacated on other grounds, 543 U.S. 1097

| EEE e rae ce eee OEE aay ae sa aeD 23

United States v. Nourse,

9 Vet. 8, 9 L. Ed. 31 (18385) ....................... 19

United States v. Widdowson,

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

SOUP OF, St 0 IB irocccchasiaccssntousavcevvchentceck 22

iv

TABLE OF AUTHORITIES

Yakus v. United States,

Hah, Me oan vorvcidechenncesersdanenessnes

Youngstown Sheet & Tube Co. v. Sawyer,

Ey 2.) Enna 18

CONSTITUTION, STATUTES, RULES

AND REGULATIONS

U.S. Const. amend. X ....... Pa tc chabenanidsicadies 14

Administrative Procedures Act,

ee io darcaetabeeansercedecakexencsinases 13

{llegal [mmigration Reform and Immi-

grant Responsibility Act of 1996,

Pub. L. No. 104-208, Stat. 3009, 3009-

554, (codified as amended at 8 U.S.C.

fT aE EEE RO Sn ai NOTED 2

I acca ssa cocaaeaeneads passim

PN BEC T BD ae doscccrevevicececinseescceves 7, 10, 20

Section 102(c)(2)(A) .....................0.--26 8, 18, 21

em Ll bb) ae 8

Federal Grant and Cooperative Agreement

Act of 1977, 31 U.S.C. § 6303-05 .............. 12

Federal Land Policy and Management Act,

43 U.S.C. § 1701 et. seg.............. ee oe 12

Rivers and Harbors Act of 1899, Mar. 3,

1899, ch. 425, 30 Stat. 1121...................... 12

OTHER AUTHORITY

Christopher Sherman, One Hidalgo County

Community Won’t Escape Border Fence,

Assoc. Press, Mar. 21, 2008...................... 5

Vv

TABLE OF AUTHORITIES

Page(s)

Congressional Research Service Memoran-

dum, Section 102 of H.R. 418, Waiver

of Laws Necessary for Improvement of

Barriers at Borders, Feb. 9, 2005............. 12

Federalist No. 39 (James Madison)

(Clinton Rossiter ed., 1961)................0..... 14

IN THE

Supreme Court of the Anited States

No. 08-751

COUNTY OF EL PASO, ET AL.,

Petitioners,

¥.

MICHAEL CHERTOFF, SECRETARY

U.S. DEPARTMENT OF HOMELAND SECURITY, AND

U.S. DEPARTMENT OF HOMELAND SECURITY,

Respondents.

On Petition for a Writ of Certiorari to the

United States District Court for the

Western District of Texas

BRIEF OF AMICI CURIAE

THE CITY OF EAGLE PASS, TEXAS, AND

OTHER CITIES AND OTHER AFFECTED

PERSONS ALONG THE TEXAS-MEXICO

BORDER IN SUPPORT OF PETITIONERS

STATEMENT

The City of Eagle Pass, Texas, and the other cities

and entities along the Texas-Mexico border listed

herein, respectfully submit this amicus brief in

support of the petition for a writ of certiorari.’

‘No counsel for a party authored this brief in whole or in part

and no counsel or pa’ ty made a monetary contribution intended

to fund the preparation or submission of this brief. No person

other than counsel for amici curiae made a monetary contribu-

2

INTEREST OF THE AMICI

Amici are cities, and other affected persons along

the Texas-Mexico border who have been injured by

waivers of state and local laws by the Secretary of the

U.S. Department of Homeland Security, which are

purportedly made prrsuant to Section 102 of the

Illegal Immigration hteform and Immigrant Respon-

sibility Act of 1996, 8 U.S.C. § 1103 note (“ITRIRA”).

The amici share the view that these waivers of state

and local laws by an unelected federal official raise

profound, unanswered questions about the elimina-

tion of any judicial review (except on constitutional

questions) of an executive agency’s delegated, wholly

discretionary power to waive any statutes, including

state and local statutes, that the official sees fit in

order to accomplish a given goal. The Homeland

Security Secretary’s exercises of his waiver power to

date have been especially troubling because he has

purported to waive “in their entirety” all “state, or

other laws, regulations and legal requirements of,

deriving from, or related to the subject of” thirty-

seven different federal laws, without specifying which

state and local laws he is waiving, for how long, in

which geographic area, and with respect to which

parties. The Secretary also has unilaterally ex-

panded the scope of section 102(c)’s waivers from

those needed “to ensure the expeditions construction

of barriers and roads” authorized by section 102 of

the IIRIRA to those needed to ensure the “upkeep of

fences, roads, supporting elements, drainage, erosion

control, safety features, surveillance, communication,

and detection equipment of all types, radar and radio

tion to its preparation. The parties have filed letters consenting

to the filing of this brief with the Clerk of this Court.

3

towers, and lighting” in the Project Areas. (Pet’r’s

App. 4a, 15a) (emphasis added).

Each of the amici and their citizens are directly

affected or potentially will be affected by the

Secretary’s waivers. The anici submit that the

Secretary has impermissibly encroached on the most

fundamental aspect of the sovereignty of our govern-

ments and the sovereignty of the State of Texas: the

power to govern by our own duly enacted laws. In

their scope, vagueness, apparent permanence (waiver

of laws necessary to “upkeep,” not just construct, the

fence) and judicial unreviewability, the waivers

issued by the Secretary of Homeland Security have

dramatically inhibited the power of the governmental

amici, and the State of Texas, to prescribe and

enforce reasonable regulations necessary to preserve

the public order, health, and safety.

The Secretary’s waivers jeopardize the ability of

the governmental amici to carry out their statutory

duties to interpret and enforce Texas, county and

municipal laws, regulations and ordinances. The

waivers of all unnamed “state, or other laws, regula-

tions and legal requirements . . . deriving from, or

related to the subject of” the thirty-seven identified

federal statutes waived leaves the amici and their

citizens uncertain about the state of the law in their

jurisdictions. The waivers call into question the

continuing validity of numerous state statutes, county

orders, judicial decrees and government contracts

that might be construed as “deriving from, or related

to the subject of” the enumerated federal statutes,

including among others: the Texas Local Government

Code, Antiquities Code, Natural Resources Code,

Health and Safety Code, Agriculture Code, Parks and

Wildlife Code, Penal Code, and Water Code and

4

Auxiiary Laws; county orders related to health and

safety, waste disposal, and the environment; provi-

sions of the municipal codes related to water and

sewage, storm water management, air pollution, and

noise control; city and county contracts, including

contracts with the water improvement districts and

others, for the delivery of water to the amici and

their citizens; certain judicial decrees adjudicating

water rights; contracts between water improvement

districts and the United States authorizing the

districts to divert water from the Rio Grande River;

and city grant agreements with the State of Texas,

which require the cities to certify to compliance with

federal laws, including several of those waived, as a

condition of receiving grant money.

The Secretary’s exercise of his waiver authority

thus interferes with the police powers of the govern-

mental amici by rendering it impossible for the

governmental amici to know which laws to enforce

and which are waived, or to know against whom (if

anyone) the laws may be enforced. It directly hinders

the ability of the governmental amici to protect the

health, safety and general welfare of their people by

trampling the basic laws and regulations that have

been enacted for those purposes.

Moreover, the Secretary’s waivers have blockaded

or will blockade the municipalities and counties’

abilities to protect the health, safety and welfare of

their citizenry in a quite concrete way as well. The

“border” barriers are being constructed north of the

Rio Grande River flood plain, sometimes as much as

a mile inland. Property, businesses and houses in

U.S. territory, but now on the south (Mexican) side of

the wall, are being stranded from their governments.

Entire neighborhoods will be on the south side of the

5

wall. See Christopher Sherman, One Hidalgo County

Community Won’t Escape Border Fence, Assoc. Press,

Mar. 21, 2008. The Secretary’s border barriers, then,

will be an actual physical barrier prohibiting the

governmental amici to fulfill their sovereign man-

dates to protect their citizens from crime, fire and

other hazards. These barriers that isolate houses,

businesses and communities will impede or prevent

the governmental amici from rescuing or assisting

their citizens in times of natural disaster (such as the

flooding of the Rio Grande River). The Secretary’s

unbridled exercise of his wavier powers literally

imperils the safety and welfare of many of the citi-

zens of the governmental amict.

The waivers not only impair the amici’s ability to

serve their citizens and fulfill essential governance

functions, but impose financial costs on the amici as-

sociated with implementing the Secretary’s waivers.

The waivers further imperil the citizens of the amici

by interfering with the water improvement districts’

access to and ability to maintain their canals, poten-

tially damaging the facilities and infrastructure on

which the districts rely to deliver water, potentially

generating debris that could clog the districts’ flood

control infrastructure, circumventing the districts’

permitting processes for use of district property, and

interfering with the districts’ standards for bridge

construction, road maintenance and dust pollution,

among other things - all of which threaten the supply

of clean water to the citizens of amici. All of the

effects listed above will impose significant financial

costs on the amici that will, in turn, inevitably be

passed through to the citizens of amict.

A list of the amici appears as Appendix A, repro-

duced at la.

6

SUMMARY OF ARGUMENT

To our knowledge, neither this Court, nor any fed-

eral court of appeals, has ever been asked to review a

delegation of power to a single, unelected federal

executive officer to effectively nullify or, at a mini-

mum, suspend state and local statutory requirements

that is this far reaching. Certainly no appellate court

has ever upheld such a broad delegation of legislative

power to the executive branch in the absence of

judicial review. While the Constitution gives Con-

gress the authority to regulate matters directly and

to preempt contrary state regulation, the Constitu-

tion does not give federa! officials the power to

“waive” state laws of their choosing. Amici are aware

of no appellate decision upholding such a waiver

power. Amici also are aware of no instance in which

an appellate court has construed authority to “waive”

laws to mean that Congress intended to “preempt”

state regulation or legal! requirements.

The Court should grant the writ of certiorari to

address whether such a delegation can be made

without judicial review, and whether such a delega-

tion can ever be made to “waive” attributes of state

sovereignty, including the local police powers of the

State of Texas, the City of Eagle Pass, and ..2 other

cities and local governments of Texas and the border

states. These powers were reserved by the Tenth

Amendment to the states. The power to preempt

state laws and regulations delegated to Congress in

the Constitution does not encompass the power of an

unelected cabinet officer to rule by fiat in the border

regions of this nation. The unrestricted grant of

power to an unelected official to waive any law on the

books he deems “necessary” for his purposes, includ-

ing not only substantive laws but also procedural

7

statutes, raises the specter of arbitrary power and

the loss of liberty. “Just as the separation and inde-

pendence of the coordinate branches of the Federal

Government serve to prevent the accumulation of ex-

cessive power in any one branch, a healthy balance of

power between the States and the Federal Govern-

ment will reduce the risk of tyranny and abuse from

either front.” Gregory v. Ashcroft, 501 U.S. 452, 458

(1991).

Section 102 of the IIRIRA presents this Court with

the must sweeping and starkest possible context to

address this question, because Congress could

scarcely have made a broader delegation than this

one. Section 102(c)(1) of the IIRIRA grants the Sec-

retary of Homeland Security, “[nlotwithstanding any

other provision of law,” the “authority to waive all le-

gal requirements such Secretary, in such Secretary’s

sole discretion, determines necessary to ensure expe-

ditious construction of the barriers and roads under

this section.” Pursuant to this authority, the Secre-

tary already has issued five waivers nullifying thirty-

seven federal statutes and all state and locai laws,

rules, regulations and legal requirements “deriving

froin, or related to the subject matter of,” those

specified federal statutes along much of the border

with Mexico. The Secretary has not defined for local

officials which particular laws are no longer in force.

Nor has he explained whether they are waived in

whole or just in part. Nor has he identified the

geographical boundaries (inland from the border) of

the waiver, the duration of the waiver, or even

against whom these waivers apply.

The Secretary has asserted that these sweeping

waivers are “necessary.” But contrary to what

normally would occur in the context of reviewable

8

agency action, he has offered no reasons why.

Perhaps even more troubling, the Secretary has sua

sponte expanded his waiver powers beyond those

provided by Congress. Section 102(c) grants the

Homeland Security Secretary “the authority to waive

all legal requirements such Secretary, in such

Secretary's sole discretion, determines necessary to

ensure expeditious construction of the barriers and

roads under this section.” (emphasis added). The

Secretary’s waivers, by contrast, waive laws not only

concerning the construction of the barriers, but also

with respect to the “upkeep of fences, roads, sup-

porting elements, drainage, erosion controls, safety

features, surveillance, communications, and detection

equipment of all types, radar and radio towers, and

lighting” in the Project Areas. (Pet’r’s App. 4a, 15a.)

The Secretary may believe that his waivers are

permanent.

Neither the scope of the waivers, nor the Secre-

tary’s expansion of his statutory authority by admin-

istrative fiat, nor the actual “necessity” of the waiv-

ers, nor the possibly permanent nullification of state

laws, can be reviewed by the courts except on

constitutional grounds. IIRIRA § 102(c)(2)(A).” Indeed,

because of the statute’s sixty-day statute of limita-

tions (as explained in greater detail below), this case

presents the last chance for any court to ensure that

the Secretary’s April 3, 2008 waivers conform to the

Constitution. Absent review by the Court, every city

and county along the border, and their citizens,

businesses and water districts, will be subjected to

the Secretary’s interpretation of the scope of his dele-

* The statute also precludes any right of appeal to the Courts

of Appeal following a determination of a constitutional question.

ITRIRA § 102(¢e)(2)(C).

9

gated authority. He will be the sole arbiter of which

laws he has waived, whether the waived laws are

partially or totally inoperative, whether the hundreds

of state and local laws implicated by his ambiguous

waiver have been preempted and to what extent, how

long the waivers shall remain in effect, and whose

compliance with the laws are waived. This un-

checked power over the communities of Texas (and

the rest of the border states) contravenes basic

principles of federalism and decimates the “residual

and inviolable sovereignty” of the states that the

Framers envisioned and that has been part of our

Constitutional framework since the founding.

The absence of judicial review of the Secretary’s

waiver power is at the heart of the problems posed by

the statute. Assurance of judicial review has been

crucial to this Court’s review of constitutional chal-

lenges to Congressional delegations of power and

preemption of state iaws and regulations. In particu-

lar, the availability of judicial review underlies this

Court’s “intelligible principle” jurisprudence. See,

e.g., Touby v. United States, 500 U.S. 160, 168-69

(1991); Skinner v. Mid-Am. Pipeline Co., 490 U.S.

212, 218 (1989); Mistretta v. United States, 488 U.S.

361, 379 (1989); INS v. Chadha, 462 U.S. 919, 953

n.16 (1983); Yakus v. United States, 321 U.S. 414, 426

(1944).

However, this Court has never directly addressed

the question of whether, in the case of an exception-

ally broad delegation, satisfaction of the “intelligible

principle” test requires the availability of judicial re-

view. Put another way, can the “longstanding princi-

ple” that Congress may delegate powers to the execu-

tive branch “so long as Congress provides an admin-

istrative agency with standards guiding its actions

10

such that a Court could ‘ascertain whether the will of

Congress has been obeyed . . .” be satisfied if the

“court” is entirely removed from the principle’s opera-

tion? See Skinner, 490 U.S. at 218 (emphasis added).

This Court has never directly answered this question,

which is of critical importance to ensuring that

Congress’s delegation of authority to executive branch

agencies is done in a manner consistent with separa-

tion of powers. The amici respectfully submit that

this, too, renders a grant of certiorari important and

necessary.

ARGUMENT

I. SECTION 102(c) OF ITRIRA PRESENTS

A UNIQUELY BROAD DELEGATION

WITHOUT JUDICIAL REVIEW

Whether a federal executive branch kgency can

freely and without judicial review waive any state

law that it, in its unfettered discretion, deems “neces-

sary” to its purposes, and whether the non-delegation

principle requires judicial review for especially broad

grants of policymaking authority, are questions pre-

sented here in the context of an unprecedently

sweeping delegation of authority by Congress to the

Homeland Security Secretary. Section 102(c) of the

IIRIRA provides:

(c)(1) 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 Secretary’s sole

discretion, determines necessary to ensure expe-

ditious construction of the barriers and roads

under this section. Any such decision by the Sec-

retary shall be effective upon being published in

the Federal Register.

IIRIRA § 102(c)(1).

11

This sweeping delegation of authority is unprece-

dented. Certainly, a number of federal laws have

authorized an agency official to waive legal require-

ments in particular circumstances, but such delega-

tions typically involve directions to the executive to

waive particular provisions of particular federal laws

(most commonly, only provisions of the same law

containing the waiver authority), and such waivers

usually are subject to judicial review. Crucially, in

every instance we know of where the executive

branch has been authorized by Congress to waive a

law, the laws that are permitted to be waived are

federal laws. We know of no instance in which a

federal official has been given the right to simply

“waive” state and local laws “necessary” in his view to

achieve his purposes.

Moreover, prior delegations to an executive agency

of the power to waive laws usually, if not always,

have involved the waiver of laws within the purview

of that agency’s expertise and specialized knowledge,

and therefore differ from “the delegation at issue here

in that agencies often develop subsidiary rules under

the statute,” thus diminishing “the risk that the

agency will use the breadth of a grant of authority as

a cloak for unreasonable or unfair implementation.”

Clinton v. City of New York, 524 U.S. 417, 489 (1998)

(Breyer, J., dissenting) (citing 1 K. Davis, Adminis-

trative Law § 3:15, pp. 207-208 (2d ed. 1978)).

Here the delegation, while limited by Congress as

to purpose, is unlimited as to application. The Secre-

tary of Homeland Security, upon a mere pronounce-

ment that he finds waiver “necessary,” can waive any

law promulgated by any authority in effect anywhere

in the nation. As far as we can determine, Congress

has never delegated to a federal agency anything ap-

12

proaching such an omnibus waiver authority. As an

independent study by the Congressional Research

Service concluded:

After a review of federal law . . . we were unable

to locate a waiver provision identical to that of

§ 102 of H.R. 418—17.e., a provision that contains

‘notwithstanding language,’ provides a secretary

of an executive agency the authority to waive all

laws such secretary determines necessary, and

directs the secretary to waive such laws. Much

more common, it appears, are waiver provisions

that (1) exempt an action from other require-

ments contained in the Act that authorizes the

action, (2) specifically delineate the laws to be

waived, or (3) waive a grouping of similar laws.

Congressional Research Service Memorandum, Sec-

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

Improvement of Barriers at Borders, Feb. 9, 2005, at

5a-6a, reproduced at Appendix B.

The Secretary’s exercise of the Section 102(c)

waiver delegation has been even more unfettered in

practice than it is in authorization. The Secretary’s

two April 3, 2008, waivers, covering almost 500 miles

of territory along the Mexican border from California

to Texas, waive “all federal, state, or other laws,

regulations and legal requirements of, deriving from,

or related to the subject of” thirty-seven laws,

including among other things environmental laws,

historic preservation acts, the Rivers and Harbors

Act, the Federal Land Policy and Management Act,

the Federal Grant and Cooperative Agreement Act of

1977, acts protecting the exercise of religious

13

freedom, and the entirety of the Administrative

Procedures Act.”

Secretary Chertoffs state law waivers are poten-

tially even broader, because the Secretary did not

identify which state or local laws he is waiving. Nor

did he specify when the waivers will end. Amici do

not even know if they will end, as Congress in-

structed, upon completion of the construction of the

roads and barriers, because the April 3, 2008 waivers

metastasized Congress’s delegation to waive when

“necessary ... to ensure the expeditious construction

of the barriers and roads” into a waiver for the pur-

pose of, among other things, the “upkeep of fences,

roads, supporting elements, drainage, erosion con-

trols, safety features, surveillance, communications,

and detection equipment of all types, radar and radio

towers, and lighting” in the Project Areas. (Pet’r’s

App. 4a, 15a.) Nor has the Secretary provided an ex-

planation of why he finds it “necessary” to waive all

provisions of 37 federal statutes and all provisions of

every state and local law, ordinance, rule, regulation

or requirement relating to them. (/d.)

The sweeping delegation without judicial review to

the Homeland Security Secretary in Section 102(c) of

the ITRIRA and his exercise of that delegated

authority to bulldoze wide swathes of unidentified

state and local law not only to construct barriers and

roads, but to “upkeep” many other things, raises vital

questions that this Court should address about

whether Congress (or the Secretary) have over-

reached into the sovereign domain of the states and

* The laws that the Secretary has identified that he is waiving

are identified in the waivers, which are included in the

Appendix to the Petition. (Pet’r’s App. 4a - 5a, 15a - 17a.)

14

whether there has been an unconstitutional delega-

tion of power which, in the utter absence of judicial

review, violates the separation of powers doctrine.

Il. A WRIT OF CERTIORARI SHOULD ISSUE

TO CONSIDER WPETHER A FEDERAL

EXECUTIVE BRANCH AGENCY CAN

NULLIFY STATE LAWS ON ITS OWN

AUTHORITY

Under the Supremacy Clause, federal officials have

no inherent authority to waive state laws. On the

contrary: it “is incontestable that the Constitution

established a system of dual sovereignty.” Printz v.

United States, 521 U.S. 898, 918 (1997) (citing Greg-

ory v. Ashcroft, 501 U.S. 452, 457 (1991)); Tafflin v.

Levitt, 493 U.S. 455, 458 (1990). The states “retain a

residuary and inviolable sovereignty.” Alden ov.

Maine, 527 U.S. 706, 714-15 (1999) (quoting The Fed-

eralist No. 39, p. 245 (C. Rossiter ed. 1961) (J. Madi-

son)). Residual state sovereignty is expressly pro-

tected by the Tenth Amendment of the Constitution.

“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 peo-

ple.” U.S. Const. amend. X. The Constitution also

contemplates, as Madison expressed it, that the “local

or municipal authorities form distinct and independ-

ent portions of the supremacy, no more subject,

within their respective spheres, to the general au-

thority than the general authority is subject to them,

within its own sphere.” The Federalist No. 39, at 245,

quoted in Printz, 521 U.S. at 920-21.

The district court below offered several justifica-

tions for upholding the Secretary’s assertion of power

15

to preempt state and local laws. None pass constitu-

tional muster.

One justification presented by the district court

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

tion clause. 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. While federal officials are occa-

sionally given authority to waive federal laws that

they are charged with administering, federal 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, but preemption

is not waiver.

The district court concluded that the Homeland Se-

curity Secretary’s exercise of his waiver power re-

flects nothing more than an application of the princi-

ple that state laws that conflict with federal law are

necessarily preempted. The court reasoned that

“even if the Waiver Legislation does not contain ex-

plicit preemptive language,” state law is still “conflict

preempt[ed]” by the Secretary's waivers. (Pet’r’s App.

40a.) While agency action can preempt state law

without an express grant of preemptive authority

where a court determines that “compliance with both

federal and state regulations is a physical impossi-

bility” (Florida Lime & Avocado Growers, Inc. v.

Paul, 373 U.S. 132, 142-43 (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. Davidowitiz,

312 U.S. 52, 67 (1941)), the determination must

nonetheless be left to a court—not to unreviewable

administrative fiat. By contrast, here the Secretary

16

himself has made the decision to preempt 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 far exceeds anything previously

recognized as conflict preemption. Moreover, prece-

dent teaches that the Secretary’s articulated basis for

preemption is inadequate. “I'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) (citing

Morales v. Trans World Airlines, Inc., 564 U.S. 374,

383-384 (1992)).

There is a more fundamental flaw with the district

court’s conflict preemption argument. Even if the

district court correctly applied the conflict preemp-

tion framework applicable here, “question[s] remain[]

whether the [Secretary] acted within [his] statutory

authority in issuing the pre-emptive” regulation and

whether or not there actually is a conflict. Fidelity

Fed. Sav. and Loans Ass’n v. de la Cuesta, 458 U.S.

141, 159 & n. 14 (1982). After all, the Secretary has

not enumerated which state and local laws are

displaced; nor does he explain why all laws “of, de-

riving from, or related to the subject of” his mandate

under the IIRIRA are actually conflicting with execu-

tion of that mandate. Without judicial review, the

district court’s assertion that the “Secretary, pursu-

ant to the Supremacy Clause, has only waived state

and local laws which interfere with Congress’s pur-

pose to construct the border barrier” (Pet’r’s App.

40a) cannot be verified, because the Secretary has not

identified which state and local laws he has waived.

Moreover, the district court’s assurance also is

betrayed by the actual language of the waivers,

which provide that the Secretary is waiving state and

Mu

local laws that he considers necessary for the

“upkeep” of things that are not barriers and roads.

Nor can the district court’s assurance be tested by

anybody in any forum, and thus it cannot be enforced.

The district court also offers the hollow consolation

that after “carefully reviewing the Waiver Legisla-

tion, the Court concludes the Secretary’s waivers do

not affect the validity of the state and locai laws.”

(Pet’r’s App. 41a.) “Rather, the waivers merely

suspend the effects of the state and local laws. The

state and local law remain operative to the extent

they have not been preempted by the Waiver

Legislation according to its own terms, U.e., those

laws that do not interfere with the expeditious con-

struction of the border fence.” (/d.) Again, however,

the district court’s assurance is betrayed by the terms

of the waivers. The “suspension” of laws is of indefi-

nite duration, and may be permanent with respect to

“upkeep.” How, thus, do laws remain “valid” when

they are indefinitely, and perhaps permanently, un-

enforceable? How can it even be determined to what

extent the laws remain operative when the waivers

are expressly not limited to the construction of the

border fence? How can any of the district court’s as-

sumptions be tested when there is no forum for re-

view of the Secretary’s decisions? After all, the dis-

trict court’s decision, coupled with Section 102(c)’s

sixty-day statute of limitations, makes the Secretary

the sole arbiter of preemption decisions. The stat-

ute’s preclusion of judicial review, once this narrow

window has closed, guarantees that any dispute over

which laws fall within the vague bounds of the Secre-

tary’s declarations of preemption will be resolved by

agency fiat. This Court should grant review to con-

firm that these questions are ink2rently judicial, and

that no agency is entitled to confer upon itself a lim-

18

itless and unreviewable power to vaive state and lo-

cal laws as it chooses.

Ill. A WRIT OF CERTIORARI SHOULD IS-

SUE TO CONSIDER WHETHER BROAD

DELEGATIONS TQ UNELECTED MEM-

BERS OF THE EXECUTIVE BRANCH

REQUIRE THE AVAILABILITY OF JUDI-

CIAL REVIEW

Section 102(c) of the IIRIRA forbids judicial chal-

lenges to Secretary Chertoffs waiver determinations

and the exercise of his waiver power. Only constitu-

tional challenges may be made.

The Court has consistently highlighted the avail-

ability of judicial review of administrative action as

an essential predicate to upholding broad delegations

of congressional power under the “intelligible prin-

ciple” requirement. See, e.g., Touby v. United States,

500 U.S. 160, 168-69 (1991); Skinner v. Mid-Am.

Pipeline Co., 490 U.S. 212, 218 (1989); Mistretta v.

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

Chadha, 462 U.S. 919, 953 n.16 (1983); Yakus uv.

United States, 321 U.S. 414, 436 (1944).

The availability of judicial review ensures execu-

tive compliance with congressional will, and thereby

ensures that the executive branch is limited to en-

forcing the law, rather than making it. JNS uv.

Chadha, 462 U.S. 919, 953 n.16 (1983); Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952).

“[Jjudicial review perfects a delegated-lawmaking

scheme by assuring that the exercise of such power

remains within statutory bounds.” Touby, 500 U.S.

at 170 (Marshall, J., concurring) (citing Skinner, 490

U.S. at 218-19).

19

In the modern era of broad delegations to adminis-

trative agencies, judiciai review assures. the

continuing validity of Chief Justice Marshall’s

observation:

It would excite some surprise if, in a government

of laws and of principle, furnished with a de-

partment whose appropriate duty it is to decide

questions of right, not only between individuals,

but between the government and individuals; a

ministerial officer might, at his discretion, issue

this powerful process . . . leaving to [the claim-

ant] no remedy, no appeal to the laws of his

country, if he should believe the claim to be un-

just. But this anomaly does not exist; this impu-

tation cannot be cast on the legislature of the

United States. .

United States v. Nourse, 9 Pet. 8, 28-29, 9 L. Ed. 31

(1835).

Therefore, “foJur constitutional structure contem-

plates judicial review as a check on administrative

action that is in disregard of legislative mandates.”

Shalala v.. Illinois Council on Long Term Care, Inc.,

529 U.S. 1, 44 (1999) (Thomas, J., dissenting). This

insight underlies the well-established presumption of

the reviewability of agency action. Abbott Labs. v.

Gardner, 387 U.S. 136, 140 (1967). “Concepts of

control and accountability define the constitutional

requirement.” Amalgamated Meat Cutters v. Connally,

337 F. Supp. 737, 746 (D.D.C. 1971) (three judge

panel) (Leventhal, J.).

The waiver orders at issue illustrate the impor-

tance of this protection. The Secretary purported to

interpret the statutory language defining “construc-

tion” to include, among other things, “upkeep of

fences, roads, supporting elements, drainage, erosion

20

controls, safety features, surveillance, communica-

tion, and detection equipment of all types, radar and

radio towers, and lighting.” (Pet’r’s App. 4a, 15a.)

(emphasis added). This interpretation is seemingly

at odds with the statute’s plain command that the

Secretary exercise his waiver authority only where

“necessary to ensure expeditious construction”—not

“upkeep”—of the border fence. IIRIRA § 102(c)(1)

(emphasis added). Given Section 102(c)’s preclusion

of judicial review for all but constitutional] questions,

however, there is no way the amici or other aggrieved

parties can challenge the Secretary’s expansive in-

terpretation of his own power. The combination of a

broad delegation and the preclusion of review thus

permits the Secretary to extend the waivers’ duration

indefinitely or even permanently.

The uncertainty surrounding the duration of the

waivers is not the only ambiguity in the Secretary’s

orders. It is unclear precisely which local laws have

been waived. It is also unclear whether the Secretary

was exempting only himself from compliance with

our laws or the laws of Texas, or whether he was

declaring al! persons and governmental entities

exempt from these legal requirements. Likewise, it is

unclear how wide an area of land is covered by the

orders.

“Congress has been willing to delegate its legisla-

tive powers broadly and the courts have upheld such

delegation because there is court review to assure

that the agency exercises the delegated power within

statutory limits.” Ethyl Corp. v. HPA, 541 F.2d 1, 68

(D.C. Cir. 1976) (en banc) (Leventhal, J., concurring)

(footnote omitted), cert. denied, 426 U.S. 941 (1976).

An excessively broad waiver provision that does not

require the Secretary to provide reasons, and whose

21

invocation is not subject to judicial review, obfuscates

any assessment of what the congressional will is, or

whether it is being followed. Indeed, selective waiver

actions by the Secretary may allow the agency to make

law in a way that bypasses Article I procedures.

Under the terms of the statute, the only authority

with the power to resolve non-Constitutional issues is

the Secretary himself. Neither amici nor any other

government body or private citizen will have any

recourse to any court if the Secretary fails to resolve

on ambiguity or a dispute, or does so in a way an

aggrieved party regards as unlawful, or issues

further waivers expansively construing the scope of

this waiver authority. It is left to the Secretary alone

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

the amici and state and local governments, without

any judicial check.

The potential impairment of governmental and

private rights by the Secretary’s orders is further

compounded by Section 102(c)’s inordinately short

statute of limitations. While the statute permits the

district courts to hear “claim[s] * * * alleging a viola-

tion of the Constitution,” such actions must be filed

within sixty days of the date of the Secretary’s watver

order—not sixty days from the infliction of any harm

(even of constitutional stature) caused thereby.

IIRIRA § 102(c\(2)(A). Absent judicial review, the

Secretary’s waiver of all state and local laws “of,

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

statutes he has waived confers upon him the other-

wise judicial function of determining whether and

when state laws have been displaced by his actions

once the sixty days have run. (Pet’r’s App. 4a, 15a.)

Moreover, the Secretary’s actions may affect private,

as well as public, rights, such as valuable water

22

rights currently held by municipal water authorities,

or the rights of the private individuals and firms that

purchase water from these authorities. The time

even to constitutionally challenge these infringe-

ments of rights may have run even before the

Secretary identifies which rights he has decided to

infringe.

As described above, prior authority from this Court

suggests the importance of judicial review as a

predicate to the resolution of non-delegation claims.

There has arisen, however, uncertainty and a split

among the lower courts as to whether judicial review

is required, an uncertainty that underlies the district

court’s reasoning on this point.

In Department of Interior v. South Dakota, 519 U.S.

919 (1996), this Court vacated and remanded without

need for argument a judgment of the Eighth Circuit,

after the Solicitor General had effectively conceded

that the agency’s action was judicially reviewable.

The decision below is at odds with this decision of the

Bighth Circuit, a decision of the Tenth Circuit, and a

prominent three-judge district court decision from

the District of Columbia, all of which state that a

permissible intelligible principle for the exercise of

delegated power must be susceptible of analysis by a

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

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

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

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

Meat Cutters, 337 F. Supp. at 746.

However, the dissenting opinion in South Dakota v.

Dep’t of Interior appears to raise doubts about the

necessity of judicial review to a valid delegation of

legislative power. 519 U.S. at 921-22 (Scalia, J.,

dissenting). This uncertainty is reflected in decisions

23

from the Fourth and Ninth Circuits. United States v.

Hammoud, 381 F.3d 316, 331 (4th Cir. 2004) (en

banc) (“it is not clear whether the nondelegation

doctrine requires any form of judicial review”),

vacated on other grounds, 543 U.S. 1097 (2005);

United States v. Bozarov, 974 F.2d 1037, 1041-45 (9th

Cir. 1992) (reversing district court’s decision that the

Export Administration Act violated the non-

delegation doctrine because of the lack of a provision

for judicial review), cert. denied, 507 U.S. 917 (1993).

This case presents the question in the starkest pos-

sible way. Section 102(c) of the ITRIRA presents the

Court with a nearly unprecedented delegation of au-

thority to waive any “legal requirements” in the na-

tion. That authority is unchecked by any judicial re-

view of whether the administrative agency is making

those waivers in compliance with congressional will

and in a reasoned fashion. The Secretary has em-

ployed this discretion aggressively, without substan-

tive explanation, and to the direct detriment of the

amici and their citizens. The characteristics of the

challenged statute and its implementation make it an

ideal vehicle to resolve the question of whether the

grant of such broad waiver power to an unelected of-

ficial, without judicial review of his use of that power,

is constitutional.

24

CONCLUSION

For these reasons, the Court should grant the peti-

tion for writ of certiorari.

Respectfully submitted,

KENNETH J. PFAEHLER MICHAEL H. BARR

SHEJAL V. DESAI Counsel of Record

Of Counsel SONNENSCHEIN NATH &

SONNENSCHEIN NATH & ROSENTHAL LLP

ROSENTHAL LLP 1221 Avenue of the Americas

1301 K Street, N.W. New York, New York 10020

Suite 600, East Tower (212) 768-6788

Washington, D.C. 20005

(202) 408-6468

Counsel for Amici Curiae The City of

Eagle Pass, Texas, and Other Cities and Other Affected

Persons Along the Texas-Mexico Border

APPENDIX

la

APPENDIX A

List of Amici

The following amici join in this brief:

City of Eagle Pass, Texas by resolution of the

City Council.

Cameron County, Texas Commissioner John

Wood.

City of Brownsville, Texas by authorization of

Mayor Patricio M. Ahumada, Jr.

City of McAllen, Texas by action and authori-

zation of the City Commission.

Chairman of the Texas Border Coalition and

Mayor of Eagle Pass, Texas Chad Foster.

2a

APPENDIX B

[LOGO]

Congressional Research Service

Memorandum February 9, 2005

SUBJECT: See. 102 of H.R. 418, Waiver of

Laws Necessary for Improvement

of Barriers at Borders

FROM: Stephen R. Vina and Todd B. Tatelman

Legislative Attorneys

American Law Division

Section 102 of H.R. 418, the REAL ID Act, cap-

tioned “Waiver of Laws Necessary for Improvement

of Barriers at Borders,” provides the Secretary of

Homeland Security with authority to waive all laws

he deems necessary for the expeditious construction

of the barriers authorized to be constructed by § 102

of the Illegal Immigration Reform and Immigration

Responsibility Act of 1996 (IIRIRA) (P.L. 104-208,

Div. C, codified at 8 U.S.C. § 1103 note) and bars

judicial review of such waiver decisions. This memo-

randum discusses the waiver provision in gencral;

the extent to which Congress has passed laws that

provide waivers comparable to §102 of H.R. 418; and

the judicial review provisions. For background infor-

mation on the border fence and § 102 of ITRIRA

please refer to CRS Report RS 22026, Border Secu-

rity: Fences Along the U.S. International Border.

3a

H.R. 418, $102

Section 102 of H.R. 418 would amend § 102(c) of

IIRIRA to read as follows:

(c) Waiver—

(1) IN GENERAL—Notwithstanding any other

provision of law, the Secretary of Homeland

Security shall have the authority to waive, and

shall waive, all laws such Secretary, in such

Secretary’s sole discretion, determines neces-

sary to ensure expeditious construction of the

barriers and roads under this section.

(2) NO JUDICIAL REVIEW—Notwithstand-

ing any other provision of law (statutory

or non-statutory), no court shail have juris-

diction—

(A) to hear any cause or claim arising from

any action undertaken, or any decision made,

by the Secretary of Homeland Security pur-

suant to paragraph (1); or

(B) to order compensatory, declaratory, in-

junctive, equitable, or any other relief for

damage alleged to arise from any such action

or decision.

Waiver Provisions

If enacted, the new § 102 would provide the Secre-

tary of Homeland Security with not only the author-

ity to waive all laws he determines necessary to

ensure the expeditious construction of the barriers

and roads under § 102 of IIRIRA, but the requirement

that the Secretary do so. This provision could provide

the Secretary with broader waiver authority than

what is currently in § 102(c) of IIRIRA. This author-

ity would apparently include laws other than the

4a

Endangered Species Act and the National Environ-

mental Policy Act, but may not include a waiver of

protections established in the Constitution.’ All laws

waived, however, must be determined by the Sec-

retary to be necessary to ensure expeditious construc-

tion of the barriers and roads. The waiver authority

provided by this amendment would also seem to

apply to all the barriers that may be constructed

under the authority of § 102 of IIRIRA—i.e., both to

barriers constructed in the vicinity of the border to

deter illegal crossing in areas of high illegal entry”

and to the barrier that is to be constructed near the

San Diego area.

Congress commonly waives preexisting laws, though

the process necessary to complete the waiver and the

number of laws waived vary considerably from pro-

vision to provision. Even more common is the use of

the phrase, “notwithstanding any other provision of

law.” While the use of a broad “notwithstanding any

‘See discussion infra. During debate of a similar exemption

provision for the border fence in the 108th Congress, supporters

argued that labor and other non-environmental laws would not

be considered as included in the phrase “any other laws.” 151

Cong. Rec. H8899-H8901 (debate of amendment to H.R. 10). It is

also not clear if state laws would be included in this waiver

provision.

*There does not appear to be any statutory or regulatory

definition for “high illegal entry.” Note however, that over the

last seven years 97% of all illegal alien apprehensions were

made along the Southwest border. See CRS Report RL32562,

Border Security: The Role of the U.S. Border Patrol. Such a high

percentage could be noted by those who might contend that the

authority in § 102(a) of IIRIRA is more applicable, at least for

now, to our Southwest borders; ultimately, however, it is the

Secretary of DHS who determines places of “high illegal entry”

under the section.

5a

other provision of law” rarely settles the interpretive

question, such directives seem facially preclusive,

and some courts have determined that “notwith-

standing” language may serve to explicitly preempt

the application of other laws.* Other courts, however,

have held that such provisions are generally not

dispositive in determining the preemptive effect of a

statute.*

After a review of federal law, primarily through

electronic database searches and consultations with

various CRS experts, we were unable to locate a

waiver provision identical to that of §102 of H.R.

418—i.e., a provision that contains “notwithstand-

ing language,” provides a secretary of an executive

agency the authority to waive all laws such secretary

determines necessary, and directs the secretary to

waive such laws.” Much more common, it appears,

are waiver provisions that (1) exempt an action from

other requirements contained in the Act that

authorizes the action, (2) specifically delineate the

laws to be waived, or (3) waive a grouping of similar

° See e.g., Puerto Rico v. M/V Emily S., 132 F.3d 818 (1st Cir.

1997). In instances where “notwithstanding” language has been

deemed controlling, courts sometimes buttress such decisions

with an analysis of the underlying directives or legislative his-

tory of a statute. See e.g., Illinois Nat'l Guard v. Federal Labor

Relations Authority, 854 F.2d 1396, 1402 (D.C. Cir. 1998).

* See e.g., E.P. Paup v. Director, OWCP, 999 F.2d 1341, 1348

(9th Cir. 1993); Oregon Natural Resources Council v. Thomas,

92 F.3d 792, 796 (9th Cir. 1996).

°Our search did not include a review of annual appropria-

tions language, which may include similar waiver provisions. It

should be noted however, that as a general proposition, appro-

priations language is limited to the year of the appropriation,

which may limit the application of any waiver.

6a

laws. The most analogous provisions that we located

appear to be, at least on their face, the following:°

e 43 U.S.C. § 1652(c): Allows the Secretary of the

Interior and other Federal officers and agen-

cies the authority to waive any procedural re-

quirements of law or regulation which they

deem desirable for authorizations that are nec-

essary for or related to the construction, opera-

tion, and maintenance of the Trans-Alaska oil

pipeline system (e.g., rights-of-way, permits,

and leases).’

e 25 U.S.C. §3406: Allows the Secretaries of the

Interior, Labor, Health and Human Services,

and Education, notwithstanding any other law,

to waive any statutory requirement, regula-

tion, policy, or procedure promulgated by their

agency that is identified by a tribal govern-

ment as necessary to implement a submitted

tribal plan under the Indian Employment,

Training and Related Services Demonstration

Act of 1992, as amended.

e 20 U.S.C. §7426: Provides almost identical

waiver language to that of 25 U.S.C. §3406,

but for plans submitted by tribal governments

° Similarly, we found some provisions that exempt certain

transactions or entities from all laws. See e.g., 49 U.S.C. §11321

(“A rail carrier, corporation, or person participating in that

approved or exempted transaction is exempt from the antitrust

laws and from all other law, including State and municipal law,

as necessary to let that rail carrier, corporation, or person carry

out the transaction, hold, maintain, and operate property, and

exercise control or franchises acquired through the _ trans-

action.”).

"It is unclear how broadly a procedural requirement of law

has been or could be interpreted.

7a

for the integration of education and related

services provided to Indian students.

There are also many other provisions that arguably

grant broad waiver authority similar to that of § 102,

but contain qualifications or reporting requirements

that seem to limit their breadth.” Some of these

waiver provisions grant the President or the head of

an Executive agency the authority to waive a law\s] if

deemed necessary in the national interest or in the

interest of national defense. We cite here, some exam-

ples of this type of waiver authority:"

¢ 43 U.S.C. §2008: Allows the President to waive

provisions of federal law he deems necessary

in the national interest to facilitate the construc-

tion or operation of crude oil transportation

systems or the Long Beach-Midland project.

The President must submit his waiver to Con-

gress, and Congress must pass a joint resolu-

tion before the President can take such actions

under the waivers.

¢ 15 U.S.C. 2621: Allows the Administrator of

the EPA to waive compliance with the Toxic

Substances Control Act upon a request and

determination by the President that the re-

quested waiver is necessary in the interest of

national defense.

"Examples of waiver authority with a congressional notifica-

tion element include: 15 U.S.C. §719f; 22 U.S.C. §2378:; 22

U.S.C. §2371; and 41 U.S.C. §413. Other examples of broad yet

somewhat more limited waiver authority include: 10 U.S.C.

$433; 22 U.S.C. §3861; 25 U.S.C. §1680h; 48 U.S.C. §1469d; and

50 U.S.C. §198.

* Other waiver authority in the national interest include: 10

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

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

8a

e 10 U.S.C. §433: Allows the Secretary of De-

fense, in connection with a “commercial activ-

ity,” to waive federal laws pertaining to the

“management and adininistration of Federal

agencies,” if compliance would create an unac-

ceptable risk to an authorized intelligence

activity. This provision further requires that

the waiver be in writing and specifically de-

scribes the types of activities that pertain to

the “management and administration of fed-

eral agencies,” though it does not specify the

actual laws.

As mentioned above and as the examples we have set

forth arguably demonstrate, the breadth of waiver

authority granted by § 102 of H.R. 418 does not

appear to be common in the federal !aw searched.

Judiciai Review Provisions

By including the language “no court,” §102(c)(2) of

H.R. 418 appears to preclude judicial review of a

Secretary's decision to waive provisions of law by

both federal and state courts. It is generally accepted

that Article Ill of the United States Constitution

grants Congress the authority to regulate the juris-

diction, procedures, and remedies available in fed-

eral courts." However, what remains uncertain is

whether Congress’s authority, pursuant to Article III,

extends to the jurisdiction, procedures, and remedies

of state courts. In addition, it remains uncertain to

what extent Congress has Article [II] authority to

prevent courts, state or federal, from addressing and

Article III of the Constitution provides that “[tjhe judicial

Power of the United States, shall be vested in one supreme

Court, and in such infenor Courts as the Congress may from

time to time ordain and establish.” U.S. CONST. Article LIT.

9a

remedying issues arising under the United States

Constitution.

With respect to Congress’s ability to control the

jurisdiction of state courts, the Supreme Court has

ruled that subject to a congressional provision to the

contrary, state courts have concurrent jurisdiction

over all the classes of cases and controversies enu-

merated in Article III, except for suits between

States, suits in which either the United States or a

foreign state is a party, and those considered within

the traditional jurisdiction of admiralty law." Thus,

it appears possible to argue that Congress has a

plenary power to allocate jurisdiction between the

state and federal courts. In other words, if, for exam-

ple, Congress can make jurisdiction over an area

of law exclusively federal,” thereby depriving state

courts of any ability to hear the claim, it appears that

Congress may also be able to remove a cause of action

" See 28 U.S.C. §§ 1251, 1331 et seg. (2004). In fact, the

presumption is that state courts enjoy concurrent jurisdiction,

and Congress must explicitly or implicitly confine jurisdiction to

the federal courts to oust the state courts. See Gulf Offshore Co.

v. Mobil Oil Corp., 453 U.S. 473, 477-84 (1981); see also Tafflin

v. Levitt, 493 U.S. 455 (1990); Yellow Freight System, Inc. v.

Donnelly, 494 U.S. 820 (1990). For example, Justice Scalia has

argued that, insomuch as state courts have jurisdiction gener-

ally because federal law is law for them, Congress can provide

exclusive federal jurisdiction only by explicit and affirmative

statement in the text of the statute, but as can be seen that is

not now the rule. See Ta/fflin v. Levitt, 493 U.S. 455, 469 (1990).

“ Perhaps the best example of an area of law that Congress

has made exclusively federal is immigration. Federal Courts,

however, also appear to have exclusive jurisdiction over the

federal antitrust laws, despite the fact that Congress has never

spoken either expressly or implicitly. See General Investment

Co. v. Lake Shore & Michigan Southern R.R. Co., 260 U.S. 261,

287 (1922).

10a

from state courts without concurrently granting juris-

diction to the federal courts.

State courts, however, are often considered to be

independent and autonomous from the federal court

system. This independent status has led some schovl-

ars to argue that because the Constitution appears

to reserve to the states the authority to control the

jurisdiction of their own courts, Congress’s “only

means of allocating jurisdiction is through control of

the federal court’s jurisdiction.” The argument that

state courts are autonomous can be derived, in part,

from the Supreme Court’s doctrine with respect to its

ability to review decisions from state courts. While

the Court has the authority to review a decision of a

state’s highest court, it has repeatedly held that it

will not do so if the decision rests upon adequate and

independent state grounds.“ This rule is arguably

designed to protect a state’s interest in developing

and applying its own laws. Thus, it would appear

that an argument can be made that Congress does

not possess the authority to regulate the jurisdiction

of state courts directly. It may be the case, however,

that Congress’s ability to control the jurisdiction of

the federal courts indirectly affects and alters the

Joan Steinman, Reverse Removal, 78 IOWA L. REV. 1029,

1080 (1992) (citing Tafflin v. Levitt, 493 U.S. 455, 458-59 (1990);

Gulf Oil Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 477-78

(1981); Henry M. Hart Jr., The Relations Between State and

Federal Law, 54 COLUM. L. REV. 489, 508 (1954)).

'* See Colman v. Thompson, 501 U.S. 722, 729 (1991) (stating

that the Court will not review a state court decision “if the

decision of the court rests on a state law ground that is inde-

pendent of the federal question and adequate to support judg-

ment”).

lla

jurisdiction of the state courts, which would appear to

preserve their autonomous status.”

Turning to Congress’s ability to remove jurisdiction

with respect to claims arising under the Constitution,

it appears that Supreme Court precedent requires

that at least some forum be provided for the redress

of constitutional rights.” While it appears that the

Supreme Court has not directly addressed whether

there needs to be a judicial forum to vindicate all

constitutional rights, it appears that the Court has

taken to noting constitutional reservations about

legislative denials of jurisdiction for judicial review of

constitutional issues, as well as construction of stat-

utes that purport to limit the Court’s jurisdiction."’ At

least one justice, however, has indicated that there

have been particular cases, such as political question

cases, wnere all constitutional review is in effect

precluded.”

It should be noted, however, that a court may interpret this

provision to be preclusive, which would appear to avoid any

constitutional issues.

'° See Ex Parte McCardle, 74 U.S. (7 Wall.) 506 (1869). For a

much more complete discussion of this issue, see CRS Report

RL31271, Limiting Court Jurisdiction Over Federai! Constitu-

tional Issues: “Court-Stripping,” by Kenneth R. Thomas, Jan.

24, 2005.

" See Johnson v. Robinson, 415 U.S. 361, 366-67 (1974): see

also Weniberger v. Salfi, 422 U.S. 749, 762 (1975); Bowen v.

Michigan Academy of Family Physicians, 476 U.S. 664, 681 n.

12 (1988); Webster v. Doe, 486 U.S. 592, 603 (1988); McNary v.

Haitian Refugee Center, Inc., 498 U.S. 479, 498 (1991); Felker v

Turpin, 518 U.S. 651, 660-61 (1996); INS v. St. Cyr, 533 US.

289, 298, 314 (2001).

See Webster v. Doe, 486 U.S. 592, 612-13 (1988) (Scalia, J.,

dissenting) (“Even apart from the strict text of the Constitution,

we have found some constitutional claims to be beyond judicial

12a

Nevertheless, the Court has generally found a

requirement that effective judicial remedies be pre-

sent. For example, in cases involving particular

rights, such as the availability of effective remedies

for Fifth Amendment takings, the Court has held

that “the compensation remedy is required by the

Constitution.”” In addition, lower federal courts appear

to have held that, in most cases, some forum must be

provided for the vindication of constitutional rights.”

Cases such as these would seem to provide a basis for

the Court to find that parties seeking to vindicate

other particular rights must have a judicial forum for

such challenges; therefore, the Court may construe

the provisions of H.R. 418 in a manner that preserves

this right.

review because they involve “political questions.” . . . In sum, it

is simply untenable that there must be a judicial remedy for

every constitutional violaticn. Members of Congress and the

supervising officers of the Executive Branch take the same oath

to uphold the Constitution that we do, and sometimes they are

left to perform that oath unreviewed, as we always are.”).

° See First English Evangelical Lutheran Church of Glendale

v. Los Angeles County, 482 U.S. 304, 316 (1987) (citing Kirby

Forest Industries, Inc. v. United States, 467 U.S. 1, 5 (1984);

United States v. Causby, 328 U.S. 256, 267 (1946); Seaboard Air

Line R. Co. v. United States, 261 U.S. 299, 304-306 (1923);

Monongahela Navigation v. United States, 148 U.S. 312, 327

(1893)).

*® See Battaglia v. General Motors Corp., 169 F.2d 254, 257

(2d. Cir. 1948) (stating that “while Congress has the undoubted

power to give, withhold, or restrict the jurisdiction of courts

other than the Supreme Court, it must not exercise that power

as to deprive any person of life, liberty, or property without due

process or just compensation ... .”). In addition, other judicial

decisions point to the doctrine of sovereign immunity and the

ability of the government to limit the remedies available to

plaintiffs. See Bartlett v. Bowen, 816 F.2d 695, 719-720 (1987)

(Bork, J., dissenting).