Trump’s Border Wall: Waive Goodbye to Environmental Protection

JACOB HENSCH—Since Trump issued Executive Order 13767, “Border Security and Immigration Enforcement Improvements,” the Department of Homeland Security (DHS) has waived dozens of environmental laws for border wall construction projects in California, Texas, and New Mexico. The waivers were issued pursuant to section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), as amended by the REAL ID Act of 2005, which provides that the Secretary of the Department of Homeland Security can waive “all legal requirements” when, according to the “Secretary’s sole discretion,” doing so is “necessary to ensure expeditious border construction.”

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The Secretary of the DHS issued the first waiver on August 2nd, 2017, after the Center for Biological Diversity (“the Center”), a nonprofit organization engaged in protecting endangered species, filed suit against the DHS for failing to comply with statutory requirements. The Secretary’s waiver purported to obviate the construction of barriers and roads along a fifteen-mile stretch of the border from any obligation to comply with those requirements and over thirty other laws. The Center subsequently amended its to challenge the waiver.

First, the Center alleged that the Secretary’s waiver was outside the scope of authority granted to the Secretary under section 102(c) of the IIRIRA, claiming that the waiver provision only applied to the specific border projects mandated under the immediately preceding section, which have since been completed. Second, the Center argued that interpreting section 102(c) to grant such broad and unbound waiver authority would violate the separation of powers doctrine, the nondelegation doctrine, the Presentment Clause, and the Take Care Clause. The case was presided over by Judge Gonzalo Curiel, the Indiana-born judge whom Trump had derided as being unfairly biased throughout a suit against Trump University because of his Mexican heritage.

On February 27th, 2018, Judge Curiel granted defendant DHS’s motion for summary judgment on all claims pertaining to the Secretary’s waiver. Regarding the scope of section 102(c), Judge Curiel noted in his that both plaintiffs’ narrow interpretation and DHS’s broad interpretation of the waiver provision were plausible. However, subsection 102(c)(2)(A) of the IIRIRA precludes judicial review of the Secretary’s waiver determinations save for alleged constitutional violations. Judge Curiel thus concluded that the Secretary’s construction of the waiver provision must stand unless it violated a “clear and mandatory” statutory requirement. Because Judge Curiel found that the Secretary’s construction was plausible, he determined no “clear and mandatory” requirement was violated. Regarding the constitutional challenges, Judge Curiel found none of plaintiffs’ arguments persuasive; in his view the DHS Secretary’s significant independent control over border control justified the delegation of broad discretionary authority.

Plaintiffs could not appeal Judge Curiel’s constitutional holdings, because section 102(c)(2)(C) forecloses the ability to seek appellate court review of district court decisions regarding the provision’s constitutionality. Any such review must be sought by petitioning the Supreme Court for a writ of certiorari.

Plaintiffs petitioned for a writ of certiorari, and on December 3rd, 2018, the Supreme Court . Thus, the DHS Secretary may continue to waive environmental laws for any segment of border construction for which the Secretary unilaterally concludes a waiver is “necessary to ensure expeditious construction.” The Secretary need not support such determinations with evidence, as the statute insulates those determinations from judicial review, effectively bestowing the Secretary with unfettered discretion.

This result is cause for concern among environmentalists. The southern border of the United States is home to pristine, sensitive habitats and bisects the geographic range of 1,506 native species, sixty-two of which are listed as critically endangered. The habitat fragmentation imposed by a border wall threatens many of these species, as they rely on the ability to migrate across the border to acquire widely dispersed food, water, and mates. Border barriers also disrupt the natural flow of water, acting as dams during seasonal floods, and severely impact the ability of wildlife to escape life-threatening events like flash floods, wildfires, and heat waves.

Obviating requirements to comply with environmental statutes will enable barriers to be erected in the most sensitive and ecologically significant portions of the border. Furthermore, with no legal requirements to mitigate environmental impact, it seems unlikely that the DHS will make any efforts minimize such disruptions. However, despite the Supreme Court declining to take up the issue, all hope is not lost for environmentalists.

A suit challenging the Secretary’s waivers for border construction projects in New Mexico and Texas is ongoing in the District Court for the District of Columbia. The is based largely on the same arguments as the California case. If the D.C. District Court comes to different conclusions than the Southern District of California regarding any of plaintiffs’ constitutional arguments, it may motivate the Supreme Court to grant certiorari to a subsequent petition.

The granting of a petition for a writ of certiorari is a matter of judicial discretion. Rule 10(a) of the Supreme Court Rules describes conflicting decisions of important matters between United States courts of appeals as an example of a “compelling reason” for granting a writ of certiorari. A disagreement among district courts about the constitutionality of section 102(c) of the IIRIRA, which circuit courts of appeals are precluded from reviewing, would be functionally analogous to conflicting circuit decisions: the DHS would find itself subject to contradictory orders over the legality of its waivers for ongoing construction, and only the Supreme Court would have jurisdiction to remedy the conflict.

Of course, the question naturally follows: on what grounds might the D.C. District Court find the waiver provision unconstitutional? Much of the reasoning behind Judge Curiel’s dismissal of the constitutional challenges was sound. The waiver provision does not appear to run afoul of the Presentment Clause, as it is thoroughly distinguishable from the line-item veto that the Supreme Court struck down in Clinton v. City of New York; the Secretary’s waivers neither alter the text of laws nor affect their application to the nation at large. And considering that the waiver provision is one of the laws that the Take Care Clause obligates the President to “faithfully execute,” it is similarly implausible that the waiver provision violates the Take Care Clause. The most plausible grounds for finding the waiver provision unconstitutional may lie in the long-dormant nondelegation doctrine, the Hail Mary of challenges to administrative action.

Because the Secretary’s determination of the waiver’s applicability is immune from review, it may not comply with the intelligible principle requirement espoused in Mistretta v. United States. While the statute’s delegation contains an intelligible principle, the preclusion of the Secretary’s determinations from judicial review prevents any entity from discerning whether the Secretary has complied with that principle. In practice, the absence of any assurance that the Secretary has complied with the statute’s intelligible principle is not meaningfully different from the absence of an intellible principle altogether. At this time, the Secretary could issue waivers for any law along any portion of the border so long as the waivers include conclusory assertions of necessity, notwithstanding facts unequivocally showing otherwise. Moreover, this unchecked authority could go beyond environmental protections—if the Secretary finds it “necessary to ensure expeditious border construction” to waive labor regulations and subject construction workers to egregious working conditions, that may be valid under the standing interpretation of the section 102(c) waiver provision so long as no constitutional rights are violated.

While the Supreme Court has not struck down a congressional delegation of authority since 1935, it has narrowly constrained statutes to avoid doing so. The D.C. District Court would likely be within the confines of existing case law to similarly constrain section 102(c) of the IIRIRA.