Border Fence case

Wed Apr 9 17:22:18 PDT 2008

It's actually not "merely" environmental laws the Secretary is authorized to waive.  He can waive "all legal requirements" he "in [his] sole discretion, determines necessary" to ensure expeditious construction.  In one case he apparently waived a provision of RFRA (I assume because there was a burial ground in the way of the fence, though I don't know that for a fact).  It could be RFRA, it could be the NLRA, it could, literally be any law, period.  

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From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Steven JamarSent: Wednesday, April 09, 2008 5:12 PMTo: conlawprof at lists.ucla.eduSubject: Re: Border Fence case
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 law?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.Steve
On Wed, Apr 9, 2008 at 8:00 PM, Scarberry, Mark <Mark.Scarberry at pepperdine.edu> 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

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From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] 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: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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-- Prof. Steven JamarHoward University School of LawAssociate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc. 
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