Border Fence case

Wed Apr 9 17:34:04 PDT 2008

I'm having trouble seeing how this responds to Mark Scarberry's 
questions. What exactly is the legal objection to the statute? That it 
is unconstitutional? If  so, what constitutional provision or doctrine 
does it violate?

Nelson Lund
George Mason

Bill Araiza wrote:
> Mark:
>  
> 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.
>  
> Bill
>
> ------------------------------------------------------------------------
> *From:* conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] *On Behalf Of *Scarberry, Mark
> *Sent:* Wednesday, April 09, 2008 5:00 PM
> *To:* conlawprof at lists.ucla.edu
> *Subject:* 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 lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] *On Behalf Of *Bill Araiza
> *Sent:* Wednesday, April 09, 2008 4:42 PM
> *To:* conlawprof at lists.ucla.edu
> *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: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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