Border Fence case

[Blumstein, James]

I am  curious how the litigation addresses the hurdle to a facial
challenge?  I would think that a fact-specific and troublesome
application would be a more likely vehicle for successful challenge -
especially given the Salerno rule (no facial challenge unless invalid in
all applications, at least outside the First Amendment and possibly in
abortion arena, although Ayotte seems to modify  that as well in some
important ways)... Jim Blumstein

 

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Bill Araiza
Sent: Wednesday, April 09, 2008 6:42 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=Cher
toff&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
<http://papers.ssrn.com/author=266562> 

 

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