Border Fence case

[Bill Araiza]

I'm sure many, maybe most, con law professors have by now heard of the case challenging the constitutionality of the statute authorizing the Secretary of Homeland Security to waive the requirement of any law if he determines a waiver necesssary to ensure the expeditious construction of the border fence along the US-Mexico border.  If not, here's a link to a New York Times story/commentary on the issue:http://www.nytimes.com/2008/04/08/us/08bar.html?_r=1&scp=6&sq=Chertoff&st=nyt&oref=slogin.  It's also been noted on a number of law blogs.  A cert. petition has now been filed.
 
To make a long story short, the statute raises some serious separation of powers questions, not just because of the breadth of the waiver authority (extending to any law at all, including state and local laws), but also because it precludes judicial review of any of the Secretary's waiver decisions (unless those decisions generate constitutional claims).  This combination of exceptionally broad power and no judicial review seems quite unusual, if not unprecedented, even in this world of broad legislative delegations.
 
I'm writing because I'm helping draft an amicus brief on behalf of professors of administrative law and constitutional law, urging the Court to take the case to resolve these difficult issues.  I'll be posting a draft of the brief somewhere early next week and soliciting sign-ons (I won't attach it to an email as that might cause technical problems for the listserv).  If anyone is especially interested please feel free to contact me and I'd be happy to talk about the case.  I'm writing now because we will have only a short amount of time between disclosure of the draft and filing, and I'd love it if interested profs could give the matter a little thought before the draft hits them next week.
 
Obviously the merits of this issue present some fascinating questions, and if people want to respond to this post with some thoughts I'd love to hear them. 
 
William D. Araiza
Associate Dean for Faculty, Professor of Law and
Richard A. Vachon, S.J., Fellow
Loyola Law School
Loyola Marymount University
919 Albany St.
Los Angeles CA 90015
213-736-8167 (voice)
213-487-6736 (fax)
SSRN Author page: http://papers.ssrn.com/author=266562
 
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