SCOTUS Rejects Border Wall Appeal

Construction Can Commence

By Andrew R. Arthur on December 4, 2018

On December 3, 2018, the Supreme Court denied (without opinion) a petition for a writ of certiorari from a February 27, 2018, decision of Judge Gonzalo P. Curiel of the United States District Court for the Southern District of California. That order dismissed challenges to waivers of various laws issued by the secretary of Homeland Security "to ensure the expeditious construction of barriers" in the San Diego area and "to ensure the expeditious construction of barriers and roads" in the Calexico, Calif., area.

As BNN Bloomberg noted: "The waivers let work proceed on a new 14-mile fence that will stretch east from the Pacific Ocean and a now-completed 2-mile fence in Calexico, California. The new fencing will be as high as 30 feet."

As the government succinctly summarized petitioners' arguments:

Petitioners' complaints, as amended, collectively alleged (as relevant) that (1) the Secretary exceeded his Section 102(c) [of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), as amended by the REAL ID Act of 2005] authority in issuing the San Diego Waiver and Calexico Waiver; (2) the projects undertaken pursuant to the waiver determinations therefore violated [the National Environmental Policy Act of 1969 (NEPA)] and the [Endangered Species Act of 1973 (ESA)], which were among the statutes the Secretary had waived; and (3) the waivers are invalid because Section 102(c) is an unconstitutional delegation of legislative authority, violates the Presentment Clause of the Constitution, U.S. Const. Art. I, § 7, Cl. 2, and violates the Take Care Clause, id. Art. II, § 3.

Section 102(a) of IIRIRA directed the attorney general, in consultation with the commissioner of the former Immigration and Naturalization Service (INS) to:

[T]ake such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.

Section 102(c) therein waived the NEPA and ESA "to the extent the Attorney General determines necessary to ensure expeditious construction of the barriers and roads under" that section. Section 102 of the REAL ID Act, in turn, amended section 102(c) of IIRIRA to require the secretary of Homeland Security to waive all laws that she determines, in her sole discretion, are necessary to ensure the expeditious construction of the border barriers. It also limited judicial review of such waiver decisions to claims that such waivers violated the constitution, and provided that jurisdiction over those claims would lie with the district courts, with sole appeal to the Supreme Court. Finally, it required that any such complaints be filed within 60 days of the secretary's "action or decision".

As the conference report for the REAL ID Act explained:

Despite the existing waiver provision, construction of the San Diego area barriers has been delayed due to a dispute involving other laws. The California Coastal Commission has prevented completion of the San Diego border security infrastructure because it alleges that plans to complete it are inconsistent with the California Coastal Management Program, a state program approved pursuant to the federal Coastal Zone Management Act (CZMA) — notwithstanding the fact that the San Diego border security infrastructure was designed to avoid and/or minimize adverse environmental impacts, and the Bureau of Customs and Border Protection (CBP) of the Department of Homeland Security testified before the California Coastal Commission that the plans for completion were consistent with the Coastal Management Program to the maximum extent practicable without sacrificing the effectiveness of the border security infrastructure. Continued delays caused by litigation have demonstrated the need for additional waiver authority with respect to other laws that might impede the expeditious construction of security infrastructure along the border, such as the Coastal Zone Management Act.

Judge Curiel determined that petitioners "ha[d] failed to demonstrate that the waivers violated a clear and mandatory provision of section 102." He then assessed and rejected petitioners' constitutional claims as they related to the San Diego and Calexico waivers, specifically that section 102(c) of IIRIRA as amended violated principles related to separation-of-powers in the nondelegation doctrine, the Presentment Clause, and the Take Care Clause.

As the government explained Judge Curiel's analysis of petitioners' Presentment Clause claim:

They [had] "argu[ed] that allowing DHS to waive laws through section 102(c) amounts to an amendment or repeal of statutes" analogous to the provision of the Line Item Veto Act ... held invalid in Clinton v. City of New York. ... The court rejected that analogy. ... The court explained that the Line Item Veto Act had "rendered the cancelled legal provisions powerless and effectively changed the law entirely." ... Here, in contrast, the statutory provisions that are waived "largely retain legal force and effect because the § 102(c) waivers only disturb the waived statutes for a specific purpose."

Similarly, with respect to the Take Care clause, the government, responding to the petition for writ of certiorari, explained:

[T]he district court rejected petitioners' contention that Section 102(c) violates the Take Care Clause. ... The court explained that, when the Secretary issues a waiver, the Secretary is taking steps "that are plausibly called for by an act of Congress" in Section 102. ... The court further reasoned that "a Take Care challenge in this case would essentially open the doors to an undisciplined and unguided review process for all decisions made by the Executive Department" pursuant to a federal statute.

In rejecting that petition without opinion, the Supreme Court leaves those waivers in place.