A Nondelegation Challenge to Trump's Border Wall

An under-the-radar environmental lawsuit could provide the Supreme Court another opportunity to revive the nondelegation doctrine.

Could an environmentalist lawsuit against President Trump's border wall provide the Supreme Court with an opportunity to revive the nondelegation doctrine? Perhaps.

Under Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the Secretary of Homeland Security is authorized to waive other provisions of federal law if doing so would facilitate the expeditious construction of border barriers.  Specifically, Section 102(c)(1) provides:

Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary's sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this Section.

No process is required for the Secretary to issue such a waiver; any waiver is "effective upon being published in the Federal Register." Further, the IIRIRA limits judicial review of the Secretary's use of this authority to constitutional challenges, and provides for no appellate review other than through a petition for certiorari straight from the district court.

In Center for Biological Diversity v. Wolf, several environmentalist groups argue that the relevant provisions of the IIRIRA violate separation of powers and the nondelegation doctrine in particular. According to the petitioners, the IIRIRA provides no intelligible principle to confine the Secretary's exercise of this waiver authority. Moreover, the petition suggests, the authority to waive "all legal requirements" is the sort of legislative authority that Congress should not be able to delegate. An amicus brief filed by state and local governments argues further that this wavier authority implicates important federalism concerns.

Most would have considered the petition to be quite a long shot. The federal government waived its opportunity to file a brief in opposition to certiorari. Then, on March 17 (just after the petition was first circulated for conference) the Court asked the Solicitor General's office to file a response brief, suggesting the case has caught at least one justice's eye. (With an extension, this brief is now due May 21.)

One final note: Although the petitioners do not make the argument, I would think there's also a question about whether it is constitutional to enact a jurisdictional provision that could have the effect of denying litigants the right to any appeal on the merits. (Although the U.S. Supreme Court has not recognized such a right, my colleague Cassandra Burke Robertson has made the case here that such a right is implicit in contemporary notions of due process.)