Border Fence case

Bill Araiza Bill.Araiza at
Wed Apr 9 17:15:51 PDT 2008

It seems to me that it's the broad grant of unreviewable discretion to the agency that is the concern here.  What if the DHS Secretary determines that a strike a a cement plant in Kansas impedes the building of the fence -- presumably under the statute he can waive the NLRA with regard to that strike. Or he can waive the NLRA if the strike goes on too long.  Or if the strike is on a Tuesday.  Or if his brother owns the plant.  And if there's another strike at a plant in Colorado where another of his brothers is a union leader, well, under the statute he doesn't have to waive the NLRA for that strike.  And none of this is subject to judicial review (again, assuming there's no constitutional claim).  So I don't think the statute is simply a "notwithstanding" clause.  The problem (at least it seems to me) is the lack of judicial review for arbitrariness, coupled with the exceptionally broad power the statute gives.

From: conlawprof-bounces at [mailto:conlawprof-bounces at] On Behalf Of Scarberry, MarkSent: Wednesday, April 09, 2008 5:00 PMTo: conlawprof at lists.ucla.eduSubject: RE: Border Fence case
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 AraizaSent: Wednesday, April 09, 2008 4:42 PMTo: conlawprof at lists.ucla.eduSubject: 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:
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