No. 18-247

In the Supreme Court of the United States
ANIMAL LEGAL DEFENSE FUND, DEFENDERS OF
WILDLIFE, AND CENTER FOR BIOLOGICAL DIVERSITY,

v.

Petitioners,

U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL.,
_________________

Respondents.

On Petition for a Writ of Certiorari to the
United States District Court
for the Southern District of California
___________________
BRIEF OF NINE MEMBERS OF THE U.S.
HOUSE OF REPRESENTATIVES AS AMICI
CURIAE IN SUPPORT OF PETITIONERS
_________________________
GRANT D. FAIRBAIRN*
LORA M. FRIEDEMANN
NIKOLA L. DATZOV
HALEY L. WALLER PITTS
BENJAMIN R. TOZER
Fredrikson & Byron, P.A.
200 South Sixth Street, Suite 4000
Minneapolis, MN 55402
(612) 492-7000
gfairbairn@fredlaw.com

Counsel for Amici Curiae
*Counsel of Record
LEGAL PRINTERS

LLC,

Washington DC ! 202-747-2400 ! legalprinters.com

 i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ..................................... iii 
INTEREST OF THE AMICI CURIAE ...................... 1 
STATEMENT ............................................................. 2 
SUMMARY OF ARGUMENT ................................... 4 
ARGUMENT .............................................................. 5 
I.  Section 102’s Unprecedented Scope
Undermines the Separation of Powers and
Checks and Balances Established by the
Constitution ..................................................... 5

A. Section 102 Delegates an Unprecedented
Scope of Authority to the Secretary to Waive
Any Federal, State, or Tribal Law ............... 6
B. The Waiver Provisions in Section 102 Are
Atypical ......................................................... 8
C. Insulating the Secretary’s Unfettered
Discretion from Judicial Review Poses a
Danger of Abuse.......................................... 10
II.    Section 102(c) Fails to Provide an
“Intelligible Principle” for the Secretary to
Wield Such an Immense Delegation of
Authority........................................................ 13

 ii
III.   As the Only Appellate Court with Authority
to Review, the Court Should Address These
Important Constitutional Questions. ........... 18
CONCLUSION ................................................... 20 

 iii
TABLE OF AUTHORITIES
Page(s)
Cases

Clinton v. City of New York,

524 U.S. 417 (1998) ....................................... passim

Hayne Blvd. Camps Pres. Ass’n v. Julich,

143 F. Supp. 2d 628 (E.D. La. 2001) ...................... 9

In re Border Infrastructure Envtl. Litig.,

284 F. Supp. 3d 1092 (S.D. Cal. 2018) .......... passim

INS v. Chadha,

462 U.S. 919 (1983) ............................................ 7, 8

J.W. Hampton, Jr., & Co. v. United States,

276 U.S. 394 (1928) ................................................ 5

Kimble v. Marvel Entm’t, LLC,

135 S. Ct. 2401 (2015) .......................................... 11

Marbury v. Madison,

5 U.S. 137 (1803) .................................................. 19

Mistretta v. United States,

488 U.S. 361 (1989) ........................................ 13, 14

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) .............................................. 13

Riegel v. Medtronic, Inc.,

552 U.S. 312 (2008) ................................................ 3

 iv

Touby v. United States,

500 U.S. 160 (1991) .............................................. 15

Constitutional Provisions
U.S. Const. art. I, § 1......................................... passim
Statutes
Emergency Supplemental Appropriations Act for
Defense, the Global War on Terror, and Tsunami
Relief, 2005, Pub. L. No. 109-13, 119 Stat. 231 ..... 3
Environmental Response, Compensation, and
Liability Act of 1980, 94 Stat. 2767, as amended,
42 U.S.C. §§ 9601-9675 .................................. 16, 17
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 § 102 ................... passim
Robert T. Stafford Disaster Relief and Emergency
Assistance Act, Pub. L. No. 93-288, 88 Stat. 143
(May 22, 1974) ........................................................ 9
Other Authorities
151 Cong. Rec. H459 .................................................. 6
151 Cong. Rec. H554 .................................................. 7

The Federalist No. 47 (James Madison) ................. 11
The Federalist No. 78 (Alexander Hamilton) ......... 19

 v
Memorandum from Stephen R. Viña & Todd
Tatelman, Legislative Attorneys, Am. Law
Division, Cong. Research Serv. on Section 102 of
H.R. 418, Waiver of Laws Necessary for
Improvement of Barriers at
Borders (Feb. 9, 2005) .................................... 6, 7, 8

 1
INTEREST OF THE AMICI CURIAE1

Amici are nine members of Congress serving on

numerous committees and representing districts in
states that border Mexico. Amici Members are
Filemon Vela (Border and Maritime Security
Subcommittee Ranking Member), Bennie G.
Thompson (Homeland Security Committee Ranking
Member), Eliot L. Engel (Foreign Affairs Committee
Ranking Member), Adam Smith (Armed Services
Committee Ranking Member), Raúl M. Grijalva
(Natural Resources Committee Ranking Member)
Sheila Jackson-Lee of Texas, Beto O’Rourke of
Texas, Juan Vargas of California, and Vicente
Gonzalez of Texas.

Amici are uniquely situated to apprise the Court

of the importance of the issues presented to the
proper exercise of their constitutionally defined
legislative responsibilities. The use of the waiver
authority provided under § 102(c) of the Illegal
Immigration Reform and Immigrant Responsibility
Act of 1996 (“IIRIRA”), as amended, by the Secretary
of the Department of Homeland Security
(“Secretary”) greatly undermines—and manifests an
1 Pursuant to Rule 37.2 of the Rules of this Court, amici curiae
state that timely notice of intent to file the brief was given to
and received by all counsel of record. The parties have
consented to this filing. Pursuant to Rule 37.6 of the Rules of
this Court, amici state that no counsel for a party has written
this brief in whole or in part and that no person or entity other
than the amici or their counsel has made a monetary
contribution to the preparation or submission of this brief.

 2
utter lack of respect for—many laws that the amici
curiae (and members of prior Congresses) drafted,
debated and defended, and that have been enacted
by the House of Representatives and Senate and
signed by the President. Combining the features of a
sweeping delegated waiver provision with an
elimination of judicial review of statutory
compliance, § 102 places in the hands of an
unelected Executive Branch official the power to
undo the work of Congress, without any
commensurate obligation to justify, or defend, that
decision. That transgresses the procedure set forth
in Article I for making law and is a direct affront to
the institution of Congress.
Additionally, amici Members who represent
districts in states that border Mexico have a keen
interest in seeing that laws are executed prudently,
in a manner that respects the statutes and
regulations that protect their communities. These
Members are also particularly well situated to
appreciate the important competing policies reflected
in the Secure Fence Act, the REAL ID Act, and the
dozens of laws critical to protecting the residents,
environment, and historical and cultural sites in the
border region.
STATEMENT
Delegations of waiver authority are a useful
legislative tool that Congress has employed to assist
in efficient and effective governance. But such
delegations also present dangers of violating the
Article I scheme for law-making, which operates to

 3
ensure a structural check on the concentration of
power in one branch of Government.
The delegation of waiver authority in § 102 of the
IIRIRA is unprecedented. Section 102 is a statutory
waiver provision that was enacted as a rider to an
unrelated emergency wartime appropriations bill.
See Emergency Supplemental Appropriations Act for
Defense, the Global War on Terror, and Tsunami
Relief, 2005, Pub. L. No. 109-13, 119 Stat. 231, § 102
(May 11, 2005) (codified at 8 U.S.C. § 1103 note)
(“Section 102”). It broadly confers on the Secretary,
an unelected Executive Branch official, “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.” Ibid. (emphasis added). The term “all
legal requirements” is sweeping and presumably
includes all forms of state and local law, including
state constitutions, statutes, regulations, rules, and
common law. See Riegel v. Medtronic, Inc., 552 U.S.
312, 322-26 (2008). It also includes all forms of
federal law, including treaties, statutes, interstate
compacts, regulations, court rules, and federal
common law.
Judicial review is limited to
constitutional claims, and an appeal from a district
court’s determination may only be raised by petition
for a writ of certiorari. § 102(c)(2)(C).
The Secretary issued two separate waiver
decisions on August 2, 2017 and September 12, 2017
invoking § 102 to waive “all federal, state, or other
laws, regulations and legal requirements of, deriving

 4
from, or related to the subject of” over 30 laws (“San
Diego and Calexico Waivers”). See Pet. App. 124a–
131a and 117a–123a. The waived laws include the
Endangered Species Act, Safe Drinking Water Act,
Administrative Procedure Act, Native American
Graves Protection and Repatriation Act, and the
Religious Freedom Restoration Act.
Id. Both
Notices reserve the authority to “make further
waivers from time to time as I may determine to be
necessary under section 102 of the IIRIRA, as
amended.” Id. Congress had no opportunity to
debate the San Diego and Calexico Waivers.
SUMMARY OF ARGUMENT
Certiorari is warranted because § 102
undermines the separation of powers, principles of
federalism, and the checks and balances established
by the Constitution in an unprecedented manner.
Section 102 places in the hands of an unelected
Executive Branch official sweeping power to undo
the work of Congress by, in effect, repealing or
amending any federal, state, or tribal law—without
any required explanation or justification.
The
Secretary does not have expertise to weigh the
competing policies reflected in the various laws
being waived against the need to build border
barriers.
Nor does § 102 give the Secretary
sufficient criteria to weigh those competing interests.
Such broad powers stray far from this Court’s
approval of prior congressional delegations of
authority and violate the procedure set forth in
Article I for the enactment of law. This is especially
true because, as held by the district court, § 102

 5
immunizes the Secretary’s waiver decisions from any
meaningful judicial or administrative review.

Amici, as members of Congress, request that this

Court grant certiorari to resolve the important
constitutional issues presented, to correct the
district court’s flawed decision, and to provide
greater guidance concerning the meaning of Article I
in this setting.
While Congress independently
considers the constitutionality of its own
enactments, Congress legislates with an eye toward
this Court’s interpretation of constitutional
standards. Where confusion exists and this Court
nonetheless stays its hand, Congress legislates with
uncertainty.
ARGUMENT
I. Section 102’s Unprecedented Scope Undermines
the Separation of Powers and Checks and
Balances Established by the Constitution.
The glaring flaws in § 102 are structural,
irremediable and antithetical to our tripartite
government. See Clinton v. City of New York, 524
U.S. 417, 450 (1998) (Kennedy, J., concurring)
(“Liberty is always at stake when one or more of the
Branches seek to transgress the separation of
powers.”); J.W. Hampton, Jr., & Co. v. United States,
276 U.S. 394, 406 (1928) (“[I]t is a breach of the
national fundamental law if Congress gives up its
legislative power and transfers it to the President, or
to the judicial branch….”).

 6

A. Section 102 Delegates an Unprecedented
Scope of Authority to the Secretary to Waive
Any Federal, State, or Tribal Law.
Section 102’s delegation of waiver authority is
unprecedented in scope. As one of the undersigned
amici curiae observed during floor debate of § 102:
To my knowledge, a waiver this broad is
unprecedented. It would waive all laws,
including laws protecting civil rights; laws
protecting the health and safety of workers;
laws, such as the Davis-Bacon Act, which are
intended to ensure that construction workers
on federally-funded projects are paid the
prevailing wage; environmental laws; and
laws respecting sacred burial grounds. It is
so broad that it would not just apply to the
San Diego border fence that is the
underlying reason for this provision. It
would apply to any other barrier or fence
that may come about in the future.
151 Cong. Rec. H459 (daily ed. Feb. 9, 2005)
(statement of U.S. Representative Jackson-Lee). A
report by the nonpartisan Congressional Research
Service on the use of waivers and regulation of
judicial review in legislation confirmed the truth of
Ms. Jackson-Lee’s observation that § 102 is
“unprecedented.” See Memorandum from Stephen
R. Viña & Todd Tatelman, Legislative Attorneys,
Am. Law Division, Cong. Research Serv. on Section
102 of H.R. 418, Waiver of Laws Necessary for
Improvement of Barriers at Borders 2 (Feb. 9, 2005)

 7
(reaching that conclusion based on “a review of
federal law, primarily through electronic database
searches and consultations with various CRS
experts”); see also 151 Cong. Rec. H554 (daily ed.
Feb. 10, 2005) (statement of U.S. Representative
Farr) (“Mr. Chairman, it has never been done before,
waiving all labor laws, all contract laws, all small
business laws, all laws relating to sacred places. It
is a broad sweep, just a total repeal of all of those
laws or a waiver of all those laws.”).
Section 102 places no restrictions on the laws
that can be waived. It does not include only certain
requirements or certain statutes, but, rather, allows
for the waiver of any laws. Many of the “waived”
statutes in this case are pillars of U.S.
environmental
and
historical
and
cultural
preservation policy.
Every one of the waived
statutes was passed by both houses of Congress and
signed into law by the President. Thus, each is the
product of the “‘single, finely wrought and
exhaustively considered, procedure’” prescribed by
the Constitution for enacting statutes. Clinton, 524
U.S. at 439-40 (quoting INS v. Chadha, 462 U.S.
919, 951 (1983)).
Waiver authority granted by statute is usually
limited in scope and is often vested in an expert
administrative agency that is charged with
administering the underlying statute. Here, in
contrast, § 102 grants to the Secretary far-reaching
power to waive an unlimited set of federal statutes,
treaties, regulations, and court rules which the
Secretary has no role in administering and as to

 8
which she has no expertise. According to the district
court below, it does not require the Secretary to even
consult with the agencies that have the relevant
expertise or authority to administer the statute prior
to issuing a waiver. Section 102 also grants the
Secretary sweeping authority to waive state laws in
all of their myriad forms. The unprecedented scope
of Congress’s delegation in § 102 provides a
particular need for the Court to grant certiorari in
this case, so that it can address the harms wrought
by such an overbroad delegation.

B. The Waiver Provisions in Section 102 Are
Atypical.
Waiver provisions are useful tools in the
legislative toolbox. As this Court has recognized,
executive waivers of statutory requirements have
been used many times. See Clinton, 524 U.S. at 44445 (citing statutes and interpreting decisions); see
also Memorandum from Stephen R. Viña & Todd
Tatelman, Legislative Attorneys, Am. Law Division,
Cong. Research Serv. on Section 102 of H.R. 418,
Waiver of Laws Necessary for Improvement of
Barriers at Borders 4-5 nn. 8-9 (Feb. 9, 2005) (listing
examples). The need for their continued use in the
future underscores the importance of this Court’s
review. Cf. Chadha, 462 U.S. at 944 (“[O]ur inquiry
is sharpened rather than blunted by the fact that
Congressional veto provisions are appearing with
increasing frequency in statutes.”).
For example, waivers of the National
Environmental Policy Act’s environmental review

 9
requirements are commonplace in the context of
federal disaster relief efforts under provisions of the
Stafford Act. See Robert T. Stafford Disaster Relief
and Emergency Assistance Act, Pub. L. No. 93-288,
88 Stat. 143 (May 22, 1974) (codified at 42 U.S.C. §§
5121-5206, as amended) (“Stafford Act”). Congress
will undoubtedly continue to include waivers such as
this in legislation with the expectation that the
Executive Branch will employ them sensibly. The
Stafford Act reflects an appropriately restricted
congressional delegation of its power to Executive
Branch officials who possess the relevant expertise
to make the waiver decisions in question. Thus, for
example, § 5170a applies only “[i]n a[] major
disaster” (§ 5170a); is limited to efforts to restore a
facility to its pre-disaster condition (§ 5159); and
applies only to an enumerated list of specified
activities (§ 5170a(1)-(5)).
In addition, waivers
under the Stafford Act are subject to judicial review
under the Administrative Procedure Act (APA). See
Hayne Blvd. Camps Pres. Ass’n v. Julich, 143 F.
Supp. 2d 628, 633 (E.D. La. 2001) (citing 5 U.S.C. §
706).
Section 102, by contrast, permits a single official
in the Executive Branch to waive application of
every
imaginable
federal
statute,
from
environmental protection to child labor laws to
transportation safety (plus, of course, the APA
itself). Exactly where to draw the line between a
waiver provision like that in the Stafford Act—which
amici believe restricts Executive Branch discretion
enough to meet the constitutional standards for
delegated authority and separation of powers—and

 10
an unconstitutional waiver provision is not entirely
clear under this Court’s decisions. Further guidance
from this Court is needed by both the litigants in
this matter, and by Congress. This is especially so
where, as here, meaningful judicial review and
normal appellate review are themselves statutorily
restricted.

C. Insulating the Secretary’s Unfettered
Discretion from Judicial Review Poses a
Danger of Abuse.
The merits of the Secretary’s waiver decisions
made under the sweeping authority granted by § 102
appear to be entirely immune from challenge. Under
the district court’s view, the Secretary’s waiver
decisions are not subject to administrative review.
See In re Border Infrastructure Envtl. Litig., 284 F.
Supp. 3d 1092, 1130 (S.D. Cal. 2018) (holding that
actions taken pursuant to § 102(c) are not subject to
APA review). Nor can the basis of any waiver
decision be challenged in state or federal court; the
only cause of action or claim that may be brought in
federal court is one “alleging a violation of the
See §
Constitution of the United States.”
102(c)(2)(A).
As a non-elected official, the
Secretary’s waiver decisions also cannot be the basis
for ouster by a vote of the people—immunizing the
Secretary not only from any legal recourse but also
from public censure.
Such comprehensive immunity vests the
Secretary with great comfort that, in exercising her
sweeping power, her waiver decisions will stand

 11
unquestioned. The same level of comfort does not
apply to the people, states, tribes, and agencies
impacted by the Secretary’s waiver decisions. “In
this world, with great power there must also come—
great responsibility.” Kimble v. Marvel Entm’t,
LLC, 135 S. Ct. 2401, 2415 (2015) (quoting S. Lee
and S. Ditko, Amazing Fantasy No. 15: “Spider–
Man,” p. 13 (1962)). As interpreted by the district
court, the Secretary remains accountable to no one.
Such monarch-like powers are entirely antithetical
to our democratic republic, the separation of powers,
and Congress’ function to legislate pursuant to the
will of the people. See The Federalist No. 47, at 301
(James Madison) (Clinton Rossiter ed., 1961) (“The
accumulation of all powers, legislative, executive,
and judiciary, in the same hands…may justly be
pronounced the very definition of tyranny.”).
The Secretary’s decision-making is not only
challenge-proof, it requires no explanation or
analysis.
Although the statute authorizes the
Secretary to waive “legal requirements” only when
“necessary to ensure expeditious construction,” §
102(c)(1), the district court adopted the Defendants’
argument that “nothing in section 102(c) requires
that the Secretaries explain the factual basis of their
Waiver Determinations.” In re Border Infrastructure
Envtl. Litig., 284 F. Supp. 3d at 1127-28. Seemingly,
then, nothing requires the Secretary to (1) explain
why she concluded the waiver is necessary; (2)
provide any evidence in support of her conclusion; or
(3) consider the impact of waiving any particular law

 12
to any property, people, or geographic area.2
Instead, as with the pronouncement of an
authoritarian decree, the Secretary can swiftly undo
a limitlessness number of vigorously debated,
carefully crafted laws enacted by representatives of
the people.
Section 102’s delegation of power raises
significant constitutional concerns not only because
of its unprecedented scope but also because it allows
for unfettered discretion immune from scrutiny.
There are no means to understand the basis for the
Secretary’s waiver decisions, let alone ensure they
remain true to the intent of Congress.
Such
unfettered discretion is rife with potential for abuse
and violates the checks and balances set forth in the
Constitution. The recent waivers by the Secretary in
2017 raise anew the constitutional problems
inherent in § 102. The Secretary’s waiver decisions
“are not the product of the ‘finely wrought’ procedure
that the Framers designed” for the enactment of
laws. Clinton, 524 U.S. at 440. As the district court
recounted, “the prerogative to make policy
judgment…[is] entrusted to our Nation’s elected
leaders, who can be thrown out of office if the people
2 Although § 102(b)(1)(C) requires the Secretary to “consult
with” various stakeholders “to minimize the impact” of any
waiver to affected “communities and residents,” the lack of any
enforcement or challenge to the Secretary’s waiver decisions
permits her to ignore Congress’ directive prior to making the
determination. As the district court recognized, the Secretary
“did not consult with the City of Calexico prior to the Waiver
Determination.” In re Border Infrastructure Envtl. Litig., 284
F. Supp. 3d at 1125.

 13
disagree with them.” In re Border Infrastructure
Envtl. Litig., 284 F. Supp. 3d at 1102-03 (quoting
Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519,
538 (2012)).
Section 102’s unprecedented delegation of
authority to a single Executive Branch official
undermines the separation of powers and checks and
balances established by the Constitution.
The
district court’s decision that § 102 is constitutional is
an abrupt departure from—and significant
expansion of—this Court’s separation of powers and
non-delegation cases. As the only appellate court
with authority to review, the Court should grant
certiorari to address these important questions.
II. Section 102(c) Fails to Provide an “Intelligible
Principle” for the Secretary to Wield Such an
Immense Delegation of Authority.
In § 102(c), Congress has attempted to authorize
the Secretary to waive “all legal requirements” to
pursue the construction of border walls along the
United States border. This blanket waiver from
Congress to the Executive Branch violates the nondelegation doctrine and separation of powers. “The
nondelegation doctrine is rooted in the principle of
separation of powers that underlies our tripartite
system of Government.” Mistretta v. United States,
488 U.S. 361, 371 (1989). Pursuant to Article I,
Section I of the Constitution, Congress—not the
Executive Branch—is vested with all legislative
powers.
Although Congress may obtain the
assistance of the Executive Branch by delegating

 14
some of its authority to the Executive Branch,
Congress must provide “an intelligible principle to
which the person or body authorized to [act] is
directed to conform.” Id. at 372. Under this
standard, a statute delegating authority is
constitutional only if it “clearly delineates (1) the
general policy, (2) the public agency which is to
apply it, and (3) the boundaries of the delegated
authority.”
Id. at 372-73 (internal quotations
omitted). The blanket waiver in this case fails to
meet those requirements and gives the Secretary
authority to waive any legal requirement, regardless
of its subject matter or significance.
With respect to the third “intelligible principle”
requirement—that the statute clearly delineate the
boundaries of the delegated authority—the district
court held that § 102(c)’s statement that the
Secretary may waive laws that are “necessary to
ensure expeditious construction of the barriers and
roads” was sufficient. In re Border Infrastructure
Envtl. Litig., 284 F. Supp. 3d at 1134. Amici do not
agree with this assessment, and even the district
court acknowledged that § 102(c) “contains
considerably fewer details than other challenged
statutes.” Id. Congress provided no guidance to the
Secretary regarding when a waiver would be
“necessary to ensure expeditious construction,” as is
evidenced by the broad and seemingly unlimited
collection of statutes waived in both the San Diego
and Calexico Waivers.
In addition, the district court’s ruling ignored a
key component of the intelligible principle standard:

 15
the availability of judicial review to determine
compliance with the constraining principle set forth
in the statute. Section 102(c)’s limit on judicial
review prohibits a court from “ascertain[ing]
whether the will of Congress has been obeyed.”
Touby v. United States, 500 U.S. 160, 168-69 (1991)
(internal quotations omitted). A critical question,
then, is not only whether § 102(c) provides an
“intelligible principle” (it does not), but also whether
the exercise of that delegated authority may be
reviewed for compliance with any such intelligible
principle. In § 102(c), by both delegating immense
and broad authority to the Secretary and also
functionally limiting judicial review of the
Secretary’s compliance with that unprecedented
level of delegation, the provision goes too far. Amici,
as members of Congress, now ask this Court to
exercise its review, and provide meaningful guidance
as to what waiver provisions are constitutionally
acceptable for Congress’ future enactments.
The district court also failed to appreciate
another rationale behind the “intelligible principle”
standard—namely, that an overbroad delegation
thwarts the will of the people.
It gives an
administrative official who is not answerable to the
electorate the authority to make difficult decisions
that Congress and the President might wish to
avoid. Here, the waivers are actions that could be
politically difficult to achieve through the Article I
legislative process; there is no question that there is
currently immense public scrutiny surrounding
issues of immigration and border protection. The
Constitution requires that Congress make these

 16
decisions,
not
an
unelected,
unaccountable
administrative official. “Failure of the political will
does not justify unconstitutional remedies.” Clinton,
524 U.S. at 449 (Kennedy, J., concurring).
In concluding that § 102(c) provides the Secretary
with an “intelligible principle,” the district court
noted that “Congress can confer more discretion to
an entity when that entity already has significant,
independent authority over the subject matter.” In
re Border Infrastructure Envtl. Litig., 284 F. Supp.
3d at 1135; see also id. at 1132 (“[W]hile courts have
recognized limits on Congress’ authority to delegate
its legislative power, those limits are less rigid
where the entity itself possesses independent
authority over the subject matter.”) (internal
quotations and citations omitted)). The district court
then concluded that, because the Secretary has
subject matter expertise with respect to immigration
and border protection, § 102(c) was valid.
This misses the mark. Section 102(c)’s waiver
authority gives the Secretary the authority to waive
not just statutes that may relate to immigration and
border protection, but all legal requirements. There
can be no dispute that the Secretary lacks subject
matter expertise or authority over the broad swath
of statutes included in the waivers. For example, the
Secretary certainly does not have expertise
regarding the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980,
94 Stat. 2767, as amended, 42 U.S.C. §§ 9601-9675
(“CERCLA”), which is otherwise known as
Superfund and provides federal authority to respond

 17
directly to releases or threatened releases of
hazardous substances that could endanger public
health and the environment. Under the district
court’s view, § 102(c) allows the Secretary to waive
CERCLA’s requirements related to, for example,
hazardous waste sites without any expertise
regarding the potential effect of doing so and how
Congress’ stated interest in enforcing CERCLA may
balance against “expeditious construction” of a
border wall segment. Similarly, the Secretary does
not have expertise regarding the subject matter of
the Farmland Protection Policy Act, the purpose of
which is to preserve farmland and includes
provisions for restoring, maintaining, and improving
farmland. Likewise, the Secretary does not have
expertise regarding the numerous statutes waived
regarding important cultural resources, such as the
Native
American
Graves
Protection
and
Repatriation Act, the American Indian Religious
Freedom Act, the Religious Freedom Restoration
Act, or the National Historic Preservation Act.
Without subject matter expertise in these areas,
the Secretary cannot know the potential impact of a
broad-brush waiver of these statutes (and indeed,
could not even know whether the waiver is, in fact,
necessary to ensure “expeditious construction”).
Nonetheless, the Secretary has acted under the
authority purportedly delegated by § 102(c) and
waived these statutes and countless other important
statutory and regulatory regimes about which the
Secretary does not have subject matter expertise.
These statutes, too, were enacted by Congress and
do not, on their face, indicate that they may be

 18
waived by the Secretary for the “expeditious
construction” of a border wall. Section 102(c)’s
apparent authorization to the Secretary to
contravene the will of Congress (and, indeed, state,
local, and tribal lawmakers, as well) in all of these
other subject matters is an overbroad delegation in
violation of the Constitution. The Court should
grant certiorari so that it can address this overbroad
delegation and provide Congress with guidance.
III. As the Only Appellate Court with Authority to
Review, the Court Should Address These
Important Constitutional Questions.
Section 102 provides that an “order of the district
court may be reviewed only upon petition for a writ
of certiorari to the Supreme Court of the United
States.” § 102(c)(2)(C). As such, the important
constitutional questions raised by the broad waiver
under § 102 will escape appellate review unless this
Court grants certiorari. The unprecedented and
sweeping waiver authority under § 102 undoubtedly
raises “important question[s] of federal law that
ha[ve] not been, but should be, settled by this
Court.” S. Ct. R. 10(c).
As the district court’s 101-page decision
illustrates, there is no bright-line rule for
determining whether Congress’ delegation of power
is constitutional. The issue presents a complex legal
question. It has been the role of this Court to
develop the law and pronounce the limits of
legislative actions that violate the Constitution. See,
e.g., Marbury v. Madison, 5 U.S. 137 (1803). The

 19
grant of authority delegated to the Executive under §
102 tests the limits of the Constitution in an
unprecedented manner, and the district court’s
decision below authorizes a scope of delegation
beyond any previously authorized by this Court.
Indeed, the district court itself acknowledged that §
102(c) “contains considerably fewer details than
other challenged statutes.”
In re Border
Infrastructure Envtl. Litig., 284 F. Supp. 3d at 1134.
Unless this Court grants certiorari, the district
court’s decision will stand, and no appellate court
jurisprudence will develop for future district courts
facing challenges to § 102.
While the Court
traditionally stands as the final “guardian of the
Constitution,” see The Federalist No. 78 (Alexander
Hamilton), under § 102’s mandate, the Court here
stands as the only appellate guardian. The Court
should not permit such a significant expansion of a
critically important doctrine without further
scrutiny from any appellate court.
Nor can the impact of the district court’s decision
be understated. Congress’ delegation to a single
unelected member of the Executive Branch the
awesome power to amend or repeal an unlimited
number of federal, state, and tribal laws undermines
interwoven policies for the separation of powers,
federalism, and tribal sovereignty that have been
fundamental pillars of our democratic republic.
Such questions of constitutional magnitude are
inherently the province of this Court and should be
answered by this Court—particularly because no
other appellate review is available.

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The questions presented by the petition are of
such weighty constitutional moment, and are so
cleanly presented on the record below, that the case
is a perfect vehicle for this Court’s review. The
decision by the sole district judge below is incorrect
and further appellate review is needed. Only by
granting certiorari can this Court ensure that its coequal branches of government have the guidance
they need to discharge their functions in ways that
respect the constitutional rights of all individuals
and organizations in the United States, which amici
are charged with protecting.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
GRANT D. FAIRBAIRN*
LORA M. FRIEDEMANN
NIKOLA L. DATZOV
HALEY L. WALLER PITTS
BENJAMIN R. TOZER
Fredrikson & Byron, P.A.
200 South Sixth Street, Suite 4000
Minneapolis, MN 55402
(612) 492-7000
gfairbairn@fredlaw.com
*Counsel of Record
September 27, 2018