404 F.Supp.3d 218
D.D.C.2019Background
- Congress enacted IIRIRA §102 (1996) to authorize construction of border barriers/roads in "areas of high illegal entry" and, originally, allowed the Attorney General to waive ESA and NEPA where "necessary" for expeditious construction.
- Subsequent amendments expanded waiver authority (2005) to allow the DHS Secretary to waive "all legal requirements" necessary for expeditious construction and added §102(c)(2), which limits review: district courts have exclusive jurisdiction but may hear only constitutional claims filed within 60 days; Supreme Court review is by certiorari only.
- In Jan. 2018 the DHS Secretary issued a waiver of 25 statutes for a 20-mile New Mexico border project (the New Mexico Waiver); construction commenced in April 2018.
- Plaintiffs (environmental groups) sued, alleging the waiver was ultra vires (beyond statutory authority) and that §102(c)(1) is unconstitutional (Presentment Clause, non‑delegation, and Take Care Clause). They sought to vacate the waiver and enjoin construction.
- Defendants moved to dismiss or for summary judgment, arguing §102(c)(2)(A) precludes federal-court review of non-constitutional challenges and that the waiver and statute are constitutional; the Court ordered supplemental briefing when DHS later invoked §102(b) as an additional statutory basis.
- The Court concluded Congress unambiguously precluded non-constitutional challenges to §102(c) waivers and found the Plaintiffs’ constitutional claims unpersuasive in light of prior district-court precedent; it dismissed the ultra vires and constitutional claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district courts may hear non-constitutional challenges (e.g., ultra vires) to DHS §102(c) waivers | The statute bars only review of lawful waivers; unlawful waivers (ultra vires) remain reviewable despite §102(c)(2)(A) | §102(c)(2)(A) unambiguously restricts causes of action and strips jurisdiction over any non-constitutional claims arising from §102(c) decisions | Court: §102(c)(2)(A) plainly precludes all non-constitutional challenges and deprives district courts of jurisdiction to hear ultra vires claims |
| Whether the New Mexico Waiver exceeded statutory authority (ultra vires) | The waiver exceeded §102(c) because it applies beyond projects mandated in §102(b) and lacked prerequisite consultations | Even if challenged on merits, courts lack jurisdiction; and DHS reasonably relied on §102(a)/(b)/(c) authority | Court: Could not reach merits—non-constitutional ultra vires claims dismissed for lack of jurisdiction |
| Whether §102(c)(1) violates the Presentment Clause by effectively repealing statutes | Waiver functionally amends or repeals statutes without presentment | Waiver does not alter statutory text or repeal laws; it implements Congress’s directive to facilitate border construction | Court: Presentment claim rejected as unpersuasive; §102(c) differs from the Line Item Veto and does not effectuate repeal |
| Whether §102(c)(1) is an unconstitutional delegation or violates the Take Care Clause | §102(c)(1) lacks an intelligible principle and vests legislative power in Executive; Take Care violation by selectively voiding laws | Congress provided intelligible limits (purpose: expeditious construction in areas of high illegal entry; waiver only as "necessary") and the statute confines the Secretary’s authority | Court: Constitutional claims fail; precedent (Defenders of Wildlife) persuasive—statute supplies sufficient guidance and does not breach separation of powers |
Key Cases Cited
- Bowen v. Mich. Acad. of Fam. Physicians, 476 U.S. 667 (1986) (presumption favoring judicial review of final agency action absent clear contrary congressional intent)
- Block v. Cmty. Nutrition Inst., 467 U.S. 340 (1984) (the presumption of judicial review may be overcome by specific statutory language or reliable legislative history)
- Clinton v. City of New York, 524 U.S. 417 (1998) (line‑item veto case; executive cancellation that effectively amends or repeals statutes violates Presentment Clause)
- Mistretta v. United States, 488 U.S. 361 (1989) (nondelegation doctrine: delegation is constitutional if Congress provides an intelligible principle)
- Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119 (D.D.C. 2007) (held IIRIRA §102(c) waiver did not violate Presentment or nondelegation principles)
- In re Border Infrastructure Envtl. Litig., 915 F.3d 1213 (9th Cir. 2019) (addressed scope of §102 and applicability of §102(c)(2) to certain challenges)