The Volokh Conspiracy

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Supreme Court

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.)

NEXT: Why Do Rule 48(a) Dismissals Require "Leave of Court"?

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  1. Covid crisis. Emergency. Need to prevent population from crossing borders. Need for quarantining. Border control critical. Wall goes up now.

    1. AL,
      Perhaps. It's not the craziest legal theory the Trump administration has trotted out.
      But, to actually address the ACTUAL risks, shouldn't we built a 5-mile-high wall along the western and eastern coastline, as 99.9% of cases came--and have been coming--from Asia and Europe? . . . gotta keep out those high-risk flights from across the Pacific and Atlantic Oceans.

      1. Ah, good times. So, if you wanted a more eloquent explanation.

        "The COVID-19 crisis may be one of the defining crises of our times. One of the major methods of ensuring reduced transmission of COVID-19 that has been employed by Nation States is the severe restrictions on international travel, coupled with mandatory quarantines for those who do travel internationally. The United States maintains strong physical control over its airports, which serve as the predominant method of international travel from Asia, Africa, and Europe. The few travelers who come in from these locations can be easily monitored and quarantines enforced, as needed. Likewise, the land border with Canada and Mexico has been closed to non-essential travel during the current crisis, with the enforcement at the border checkpoints. These border closings are widely accepted by the scientific community as a method to reduce the transmission of the virus

        Unfortunately, what remains are the large number of illegal entries, especially across the southern border with Mexico. Because they entries are illegal, they cannot be monitored effectively, nor can needed quarantine measures enforced. The risks here are notable, and there is a need to better enforce the security on the southern border, as a measure to ensure reduced spread of the coronavirus, especially with the potential for reinfection from sources in Mexico, once the epidemic has reduced in intensity in the US.

        In order to ensure better security over the southern border during this emergency, as well as required to reduce potential spread of the coronavirus, the rapid and complete construction of a physical barrier (AKA a "wall") along much of the southern border is a an emergency. While a wall alone cannot guarantee a person will not cross the border, it can reduce the chances that a person will cross, by providing an effective physical barrier. Moreover, it acts as a force multiplier, allowing fewer border control members to effectively police a larger amount of space. It is essential.

        For the safety of the nation, in the wake of this COVID crisis, and to reduce the spread of the coronavirus, enhanced physical security measures on the southern border are authorized as emergency spending.


        1. I thought your first explanation was (1) perfectly clear, and (2) not a crazy, anti-brown, racist screed. I personally think it was a bad policy before Covid, and I now think it's a currently-ineffective idea to combat Covid. I see rushing to finish more of the wall a way to take advantage of the situation (ie, Covid) to try and make the border wall more palatable to Americans, and a way to try and get more money to do this additional building. I'd much rather see those hundreds of millions instead go towards getting Covid testing to more people, to hiring more contact tracers, etc..

          I, personally, hope that if President Biden manages to stumble into election, one of the first things he'll do is order the newer parts of the wall to be knocked down. Just to give a middle finger to Trump and the immoral ways Trump diverted funds away from critical projects to the damnable wall. (I think there is almost a zero chance that Biden would actually do it. But a guy's gotta dream, no?)

          1. Sure, lets waste a bunch of money to spite the money the previous guy wasted. This is why we need new political parties.

            1. Or even better, none.

    2. If anything this has proven yet again that border walls don’t work.

      Especially since our current issue originated from Europe and not from those trying to build a better life for them and their families.

      1. COVID does nothing to prove that border walls don't work - or that they DO work.
        I cannot find any reports of even a single case where an infection strain was introduced into the US by illegal aliens. Silly people could use that to claim that "border walls DO work!" but they'd be just as wrong (unless they have records of infected illegals who were stopped by border walls).

        As for the "European Virus" claim, that's not correct. New York's cases are majority of a strain that was probably introduced from Europe. And since New York has the most cases, and New Yorkers are single most common source of national spread (especially up and down the East Coast), it follows that the European strain is the most common single strain.
        But the West Coast is dominated by Chinese strains, and those HAVE spread elsewhere - even to New York, where a Seattle strain was identified as the first (chronological) infection strain to hit the city.
        Mostly, the difference is that California and Washington did a decent job of controlling their initial infections (plus different environment, infrastructure, etc) whereas New York screwed up big time. Even beyond the nursing home thing (the #1 location of transmission), not shutting down or even cleaning the subways (the #2 location of transmission) was big.

        1. They did worse than not shutting them down, as I understand it: As ridership declined, they reduced the number of cars in service, maintaining density in the cars actually in use.

          It's hard to over-state just how bad NYC's response to the virus was. What more could they have done? Urged people to visit Chinatown, and catch a movie in a theater while they were ought? Oh, wait, they did that, too.

          1. Careful your blame doesn't fall on Trump, Brett. Because I've got bad news about what Trump was saying back in February.

            I'm not saying NYC's response was perfect, but your blame is pretty conveniently located.

            1. Perfect? They forced nursing homes to accept people known to be infected! The most charitable spin I can put on that is that they just didn't care who died; The less charitable spin is that they were trying to rid themselves of surplus population.

              Almost everybody was making mistakes early in this, due in large measure to the World Health Organization acting on Chinese orders to downplay how bad the virus was. But NYC was in a class by itself.

              1. Yeah, the tradeoffs there were pretty well laid out. I'm not sure it was the right decision, but your appeal to outrage is thin and transparent as heck.

                Funny to see the outrage at China wax and wane with Trump's attention span.

                1. "tradeoffs"

                  NY and NJ actively infected nursing homes because of the order to take them or lose your license.

                  That this was idiotic was apparent at the time.

            2. As Brett has mentioned, Cuomo's and de Blasio's responses were far worse than "not perfect", but almost as bad as humanly possible. Anything they could do wrong, they did do wrong.

        2. "European strain is the most common single strain.
          But the West Coast is dominated by Chinese strains"

          They are all Chinese strains. It started there and spread because of their negligence in allowing hundreds of thousands of people to fly to Europe and Iran.

    3. "Covid crisis. Emergency. Need to prevent population from crossing borders. Need for quarantining. Border control critical. Wall goes up now"i>

      While it's been the Governors who've become true fascists, I can not help but notice the clear difference between the explicit grant of authority here and the highly questionable implicit grants of authority to do things like shut down churches on Easter Sunday, something I never thought would happen without a Soviet invasion.

      It's amazing that folk sue over this but not over the other stuff -- apparently rats & chipmunks have more civil rights than Americans....

  2. I agree this particular challenge is a long shot.

    A basic issue is that border powers can be regarded as a war power, part of fortifications and repelling invasions. And while President’s powers as commander in chief are rather strong in their own right, they are stronger and even maximal when authorized by congress.

    Congress can’t waive the Constitution. But it has more authority to waive statutory rules without worrying about non-delegation than it does in other contexts.

    The situation is analogous to assigning decisions about base closures to a commission. Congress can delegate authority to make military construction decisions to the executive branch as long as it properly authorizes doing so.

  3. I have said previously that the President can’t use a statute giving authority to change allocated spending in emergencies because this situation, where the President previously made a spending request for the same projects and congress deliberated and turned it down, is not a genuine emergency within the meaning of the statute.

    But this is a different statute, which does not have this issue. I think it would be adequate to waive environmental impact and similar rules.

    1. People flooding over the border was the emergency, and Congress considering and refusing money for that gave them the chance to consider, and deny, the emergency need, and lack of time to do that is why the emergency law exists in the first place.

      Virus is a new emergency, and I can't see that as being implicated by Congress' denial of funds for the different, previous emergency. Not saying it is an adequate argument, but there you go.

    2. "where the President previously made a spending request for the same projects and congress deliberated and turned it down, is not a genuine emergency within the meaning of the statute."

      Except that that's not how the statute is written. Under the National Emergencies Act, a "genuine" emergency is anything the President declares to be an emergency, and Congress doesn't over-ride. And that's it, that's the only requirement. No imminence threshold, no minimum consequences if action isn't taken, nothing. Just, the President says there's an emergency, there's an emergency. And that's how it's been used in the past, by prior Presidents, so Trump isn't even breaking new ground here.

      A bad statute, but a bad statute Congress enacted.

      As for the border situation, when Trump was elected, illegal border crossings dropped to a fraction of what they'd been during the Obama administration, apparently in response to the assumption that Trump would be allowed to implement his immigration policies. Congress obstructed his enforcement efforts, and the rate started creeping up. Then in March of last year the rate started skyrocketing. From a low of about 16K a month shortly after Trump took office, it hit a peak of 144K a month in May of 2019, nearly 3 times what it had been in January.

      Trump declared his national emergency in February 2019, in response to the beginning of the spike. News outlets, including Reason, were busy denying what was happening by resorting to dated statistics from a year earlier, but the facts were available to prove something unusual was happening at the border, if you weren't committed to denying it.

      So, arguably, there was an actual emergency on the border, and Trump's order wasn't even abusive.

  4. Another pointless lawsuit in the endless parade to try to get the courts to stymie the will of an elected leader the left hates. I'm sure the left will decry the same tactics that they used against Trump the last four years if Biden wins.

    1. And the right will applaud the same tactics. Duh.

      If you want even a smidgen of credibility, why not point out the obvious--that both sides have been inconsistent, that both sides are currently being inconsistent, that both sides will be inconsistent in the future, and that this is sadly normal and enduring (and, yes, awful) in politics?
      Your unspoken suggestion--that this is something the left does, while the right does not--borders on being delusional to almost Trump-like proportions.

      1. The left increased the tactic by a huge factor. The right, having seen the benefits, will of course continue the escalation. There are right friendly circuits too.

        1. Yeats put it best: The middle shall cease to hold.

  5. Although I both sides are somewhat inconsistent I will tell you the way Trump has been treated for the last 4 years is NOTHING compared to how the right treated Obama for 8 years.

    The right is dumb to think the left will operate with some kind of internal moral limitation. It won't. Ever. And that lesson has been learned. The left really isn't going to like it when their time comes to pay the piper.

  6. I'm pretty impressed that, in this entire discussion, not a single person has attempted to tackle the non-delegation doctrine issue head on. Is that a tacit concession that most here don't dispute it (or, at least, don't understand it)?

    Anyway, if the statute is to be interpreted as stated here, that's about as broad a delegation as I've seen in a long time. That being said, the non-delegation doctrine is exceedingly weak at this point so I'm not sure courts are inclined to shut it down even here. Still, it might make for some odd bedfellows in the Supreme Court. I could see Breyer upholding the statute (probably joined by Alito) with Thomas wanting to strike it down, for example.

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