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Wednesday, April 09, 2008

Dan Kahan's non-delegation lawsuit against Chertoff's mega waiver

Yesterday, the Sierra Club and the Defenders of Wildlife filed a cert petition with the SCOTUS, seeking review of Defenders of Wildlife v Chertoff, 527 F.Supp.2d 119 (DDC 2007). DFW v Chertoff had upheld section 102 of the Real ID Act, which confers on the Secretary of the Department of Homeland Security 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." (Section 102 of the REAL ID Act of 2005, Public Law 109–13, Div. B, 119 Stat. 231, 302, 306 (May 11, 2005) (REAL ID Act) 8 U.S.C. 1103 note). (The barriers and roads" in question are of course, sections of the infamous "Wall" between the United States and Mexico. Chertoff has published the requisite notice in the federal register that he is waiving a swathe of environmental laws, as well as the APA, in order to build the wall in Texas). The same section provides that the federal district courts shall have exclusive jurisdiction to hear claims challenging the Secretary of DHS's actions taken pursuant to section 102 but only if such claims allege "a violation of the Constitution of the United States."

Dan Kahan and Yale Law School's Supreme Court Clinic are representing DOW and the Sierra Club. Their petition asserts that the broad grant of power to waive all existing federal statutes violates the non-delegation doctrine and also constitutes an unconstitutional delegation of the power to repeal existing legislation in violation of Clinton v. City of New York, 524 U.S. 417 (1998).

A question for you con law folks out there: Does anyone think that this lawsuit stands much of a chance, given the Court's holding in Whitman v American Trucking, 531 U.S. 457 (2001)? Of course, there are ways to distinguish Whitman. Section 102 confers power to waive any law whatsoever in the 50 titles of the U.S. Code. At first glance -- maybe second and third -- this is an extraordinary power. Indeed, has such a power ever before been conferred on any executive official? But the question remains whether these characteristics would be sufficient for the Court to carve out some bright-line exception to the normal deference that it pays to Congressional delegations.

Your thoughts appreciated.

Posted by Rick Hills on April 9, 2008 at 10:43 AM in Constitutional thoughts | Permalink


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List of things that are troublesome:
*Aliens Dying in the desert
*Stolen Identities
*Tens of Millions of Illegal Aliens residing in the United States
*Corporations, and, oddly, left wing groups that love illegal (and illegally priced) labor
*Anger by the citizenry as represented by various anti-immigration propositions approved by many states
*Lawyers that write amicus briefs out of fear that the Secretary will try to avert a Cement Strike
*And, admittedly, a big, dumb fence that will hurt the environment and won't work anyway.

You can add to the list based on your bias. I'm sure that the brief is written out of a sense of justice, and not just an exercise of skill and education. Congress went to these extrordinary lengths because they could see the obstructionists coming and because they like to go home and tell their constituents that they're doing something about it. But the fact is, the situation at the border is hopelessly broken, and now it's come to this. Well, here come the lawyers with their briefs. I promise you that if cert is granted and nondelegation remains dormant, it will be because of some of the factors listed above, even if that sentiment does not appear in the opinion of the court.

Posted by: James Marks | Apr 15, 2008 8:09:10 PM

Greg (and others): Here's a link to the professors' amicus brief: http://biotech.law.lsu.edu/working/WDCLIB1-25238930-v6-Brief.pdf. Thanks to Ed Richards at LSU for posting it, and apologies to anyone who's not been told where they can access it until now (decannal duties have kept me from returning to this discussion until now). Joins will be taken until the tonight (Tuesday) east coast time; email Ken Pfaehler at Sonnenschein, [email protected]

As to the petition itself, the only thing I would add to what's been already said is that it's surely a serious problem if the Secretary is given unreviewable power to override any statute at all, in effect anywhere at all in the nation. Cement strike? He can waive the NLRA. Slow supplying of building materials? Suspend the speed limits. Troublesome tort or product liability laws? Suspend them too. You get the idea, and without belaboring the point I'd simply say this parade is pretty horrible -- but it seems completely authorized by the statute.

Posted by: Bill Araiza | Apr 15, 2008 2:59:40 PM

The Petition for Cert states, "This court has NEVER upheld a broad delegation in the absence of judicial review." Well... hundreds of years of immigration law suggest differently don't they? Just how broad is that delegation to the Attorney General, hmmm? Does she have virtually unfettered power to control immigration legal matters without regard to judicial review in 99% of cases?

Posted by: SamHill | Apr 14, 2008 6:56:03 PM

i understand there is an amicus brief circulating among constitutional and admin law professors. curious if anyone here is aware of or signing onto it...
extra points if you're from texas!

Posted by: greg harman | Apr 14, 2008 4:40:52 PM

That provision is really scary. I mean, really, really scary. To what extent does it even preclude judicial review of Chertoff's determination of what's related to the wall? What if he decides that wiretapping half the U.S. or torturing some prisoners is expedient to build his fucking wall? Perhaps this is paranoid, but given the behavior of this administration, paranoia is totally appropriate.

Posted by: Paul Gowder | Apr 12, 2008 2:58:06 PM

"After all, waiver of the IRC, for the most part, simply means that the IRS CANNOT collect taxes otherwise due: the power of the executive is not increased."

No, the power extends to overriding taxpayer-friendly statutes as well. So, it extends to grabbing more dollars from taxpayers (e.g., limiting deductions, removing exclusions, disqualifying someone who is otherwise eligible, and so on). I don't think there is any doubt that the hundreds of delegations in the IRC result in a gigantic expansion of the Secretary's power to place his hands into a citizen's pocket.

I guess I am just not a worked up about a wall, particularly given the context we are in (in which extraordinary power is routinely delegated to executive branch officials). Whether 102 is so broad as to be unconstitutional is a fascinating question, but I don't think that statute is nearly as important as various other delegations (even if it is unconstitutional).

to me, anyway, that a statute is unconstitutional is not in and of itself something that I'm inclined to get worked up (as far as policy concerns go). E.g., a .00001% direct tax on property that is disproportionately apportioned among the states would be unconstitutional, but I don't think the statute is all that big a deal, whereas (for example) a perfectly constitutional statute that imposes a 75% tax on property income is a huge deal. I tend to think that real ID 102 falls into the former camp, whereas there are numerous perfectly constitutional delegations that fall in the latter camp and which bother me more.

Posted by: andy | Apr 11, 2008 12:44:42 PM

Just to be clear: Chertoff expressly waived the APA, so, quite apart from whether any court could review his "arbitrary and capricious" actions under section 706, he has absolved himself of any need not to be arbitrary and capricious.

As for the analogy to the Treasury Secretary's power to waive provisions of the Internal revenue Code -- which is more worrisome: the power to waive a lot of laws regarding a narrow matter (e.g., the Wall) or the power to waive a narrowly defined set of laws (e.g., the Internal Revenue Code) regarding anybody? I would think that the former would be worrisome. After all, waiver of the IRC, for the most part, simply means that the IRS CANNOT collect taxes otherwise due: the power of the executive is not increased. But the power to waive basic procedural protections like the APA seems to give the executive broader powers.

And I do not see how statutory construction (pari materia, etc) can make much headway with the phrase "all legal requirements." That's what Chertoff has been given the authority to waive: "all" laws. Exactly how does one draw an implied exception in such a phrase with pari materia (or any other Latin tag) for laws limiting Chertoff's power?

Posted by: Rick Hills | Apr 11, 2008 12:14:53 PM

Bill -- yikes. I just started reading the cert petition and am seeing what the fuss is about. Still, in the broader context, I don't think this issue is that alarming; the secretary can override all statutes, but only for a particular purpose. That is still, in my view, a far narrower power than that granted to the Treasury secretary regarding his ability to override hundreds of internal revenue laws for virtually any purpose.

Posted by: andy | Apr 10, 2008 7:24:40 PM

Andy: The statute precludes judicial review except for constitutional claims, so there could be no legal challenge alleging arbitrary action based on 5 USC 706. That's a lot of the reason the statute is so problematic.

Posted by: Bill Araiza | Apr 10, 2008 4:23:33 PM

"In the history of this Republic, has any executive officer ever before been given such a carte blanche to suspend the U.S. Code?"

The Internal Revenue Code has dozens (hundreds?) of delegations to the Treasury secretary, which give him the power to modify/change the substantive rules. I don't think there is a single, across-the-board delegation like the one you're concerned with, but when you add them all up, the treasury secretary's power to override substantive provisions is quite broad -- broader, i think, than the power to suspend 50 titles for the narrow purpose of building a wall.

regarding other conundrums, e.g., "Could he defy the statutory limits on his own authority contained in the statute creating his office?", I'm guessing all these provisions must be read in pari materia. surely there is some general statute that requires the secretary to not act arbitrarily/capriciously (perhaps 5 usc 706 applies), and perhaps that other general statute is equally broad (e.g. "No matter what else is in the Statutes at Large, these provisions apply..."). Thus, as a matter of statutory construction, I'm not totally convinced that section 102 of the Real ID Act necessarily wins in the case of conflicts, notwithstanding its seemingly broad sweep. that's how i would deal with the "wackiness" of the statute, although perhaps i will think differently about the issue after reading the cert petition.

Posted by: andy | Apr 10, 2008 3:00:29 PM

Both of the comments seem sensible to me: I am decidedly undecided about this issue. (Big problem: How can one operationalize a doctrinal limit on delegations of the power of executives to suspend statutes? Is the right rule that they can never be given such a power, even with single measly statute, unless there is judicial review of the suspension? Where does that rule come from?)

But I cannot help but be a bit taken aback by the sheer weirdness of telling an executive officer that he can waive any law if it will help him build a wall. Really? Any law? Could he pay people less than the minimum wage to make his budget go as far as possible? Could he bust any union-organizing by his workforce? Could he defy the statutory limits on his own authority contained in the statute creating his office? Could he say to President Obama, "although my statute says that I serve at your pleasure and subject to your direction, I really believe that your replacing me with someone less enthusiastic about the wall will interfere with my capacity to expeditiously finish the wall. Therefore, I hereby suspend the part of the statute that gives you the power to fire me."

Normally, I'd respond to such a parade of horribles by saying that the Court can simply suspend Chevron deference in the appropriate case, citing the breadth of the delegation as a reason to strictly construe the statutory grant (the Benzene Case, 448 U.S. 607 (1980) being the canonical citation). But, as a Bill Araiza notes, there is no judicial review available for such statutory as-applied challenges.

So I guess we are left with bare constitutional controls. But, given the under-developed nature of these constitutional doctrines, this thin blue line of judicial review does not fill me with confidence. (Would Chertoff's declaration that he is suspending Presidential supervision of his Wall-building activities violate Article II because it would "unduly impede the President's power to execute the laws" under Morrison v Olson?)

In short, section 102 of the Real ID Act is simply surreal. Did anyone pay attention to this wacky provision when the law was passed? Were there press reports? Debates on the floor? Some notice by anyone that this law was just a wee bit nuts? And I repeat my first question: In the history of this Republic, has any executive officer ever before been given such a carte blanche to suspend the U.S. Code?

Just curious.

Posted by: Rick Hills | Apr 10, 2008 8:40:11 AM

Considering the current composition of the Court, and the situation, I think Scalia's dissent in Clinton will carry the day. "There's not a dime's worth of difference" between Congress granting Certoff the power to circumvent a specific statute, and granting him the general power to circumvent what he needs to since Congress doesn't know which statutes will get in the way. White's dissent in INS v. Chadha is also probably more appropriate here than it was in that case. Forcing Congress to investigate the legal barriers to a border fence, before they even know where it's going to be built, its dimensions, etc., is at best very cumbersome, and at worst a self-defeating catch 22.

Posted by: Dissent, it's what's for dinner | Apr 9, 2008 7:33:38 PM

What makes this statute so troubling is the preclusion of judicial review (except for constitutional claims). A broad delegation might be one thing, but a broad delegation without any judicial review of discretionary decisions under the statute does seem to go farther than the Clean Air Act section challenged in Whitman. Full disclosure (and request for support): I'm helping draft an amicus brief urging the Court to grant this case, on behalf of professors of constitutional and administrative law, to resolve the serious separation of powers questions the statute raises. If anyone is interested in possibly joining, please email me at [email protected] and I'll get you a review copy of the brief by early next week.

Posted by: Bill Araiza | Apr 9, 2008 6:57:10 PM

I always thought Clinton v. City of New York was a pretty poorly reasoned decision given the Court's general nondelegation jurisprudence. But if one accepts that decision as precedent, it's a pretty plausible basis for the claim of unconstitutionality here, isn't it?

Posted by: Sam Bagenstos | Apr 9, 2008 3:34:29 PM

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