Border Fence case

Steven Jamar stevenjamar at
Wed Apr 9 17:12:06 PDT 2008

I think I mostly agree with Mark on this on the power part, except that the
way Congress did it was not simply to say "build it notwithstanding every
other statute that might be in the way", but rather "build it in compliance
with our environmental statutes -- unless the executive waives it under some
standard."  And this is where the delegation problem comes in, isn't it?
And the removal of court power to review the executive administration of the

This, I think makes it a closer question, but still I think it is within
congressional power to take away jurisdiction of some of these sorts of
issues, isn't it?  And since it is "merely" the environment that is
affected, and not vested rights of people, the problem of judicial review is
less critical.


On Wed, Apr 9, 2008 at 8:00 PM, Scarberry, Mark <
Mark.Scarberry at> wrote:

>  Isn't Congress in effect saying, "Build the fence,
> notwithstanding any previously enacted statutes"? Congress should not be
> bound by its prior acts. I see no reasonable basis for arguing that Congress
> cannot accomplish what it wants (getting the fence built) without separately
> revisiting each statute that could be implicated. If Congress allowed the
> executive to waive statutory requirements in order to pursue goals set by
> the executive, there would be an issue, but that is not the case here. And
> for Congress to say that only constitutional issues allow for court review
> is simply the same as saying that Congress wants the fence built to the
> extent that it can be done consistent with the Constitution. How could there
> be a statutory argument against the doing of that which Congress by its
> latest statutory enactment has ordered done?
> My perception is that this is a case in which those who are unhappy with
> Congress's choice of policy want the courts to impede Congress, even where
> Congress is acting pursuant to its constitutional powers.
> Mark S. Scarberry
> Pepperdine University School of Law
>  ------------------------------
> *From:* conlawprof-bounces at [mailto:
> conlawprof-bounces at] *On Behalf Of *Bill Araiza
> *Sent:* Wednesday, April 09, 2008 4:42 PM
> *To:* conlawprof at
> *Subject:* Border Fence case
>  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:
> 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:
> _______________________________________________
> To post, send message to Conlawprof at
> To subscribe, unsubscribe, change options, or get password, see
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.

Prof. Steven Jamar
Howard University School of Law
Associate Director, Institute of Intellectual Property and Social Justice
(IIPSJ) Inc.
-------------- next part --------------
An HTML attachment was scrubbed...

More information about the Conlawprof mailing list