284 F. Supp. 3d 1092
S.D. Cal.2018Background
- Congress's IIRIRA §102 (8 U.S.C. §1103 note) directs DHS to install "additional physical barriers and roads" to deter illegal crossings and authorizes the DHS Secretary to waive "all legal requirements" he deems "necessary to ensure expeditious construction," with judicial review limited to constitutional claims.
- In 2017 DHS Secretaries Kelly and Duke issued waiver determinations invoking §102(c) to waive NEPA, ESA, CZMA and numerous other laws for (a) an ~15‑mile San Diego replacement fence and border‑wall prototype project and (b) a ~3‑mile El Centro replacement fence.
- Plaintiffs (State of California; California Coastal Commission; Center for Biological Diversity; Defenders of Wildlife; Sierra Club; Animal Legal Defense Fund) challenged the waivers as ultra vires, statutory/APA/NEPA/ESA/CZMA violations, and as unconstitutional (non‑delegation, Presentment, Take Care, Tenth Amendment, access to courts, etc.).
- Defendants moved for summary judgment relying on §102(c)(2)’s jurisdictional bar for non‑constitutional claims; plaintiffs sought broader review including ultra vires and APA relief.
- The district court denied plaintiffs’ summary judgment motions and granted defendants’ summary judgment: non‑constitutional statutory and APA claims barred; most constitutional claims rejected; limited exception for ultra vires review not met.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court may review non‑constitutional (e.g., NEPA/ESA/CZMA/APA) claims arising from §102 waivers | §102(c)(2) cannot immunize ultra vires actions; court may review whether Secretary exceeded statutory authority | §102(c)(2) expressly bars non‑constitutional review; only constitutional claims allowed | Ultra vires/APA/NEPA/ESA/CZMA claims barred except for narrow Kyne‑style facial ultra vires review; plaintiffs failed to show clear‑and‑mandatory statutory violation, so jurisdictional bar applies. |
| Whether the waiver authority was exercised in excess of §102 (ultra vires) | Waivers exceed §102 because §102(c) limited to projects mandated in §102(b), do not authorize replacements/prototypes, consultation was lacking, and waiver expired | §102(c) applies to the section as a whole; terms like "additional," "necessary," and "areas of high illegal entry" are ambiguous and permit DHS discretion | Plaintiffs did not identify an unambiguous, clear and mandatory statutory command that Secretaries violated; Kyne exception inapplicable. |
| Whether §102 decisions under (a)/(b) are reviewable under the APA (final agency action) | The phrase "notwithstanding any other provision of law" excludes waiving §102's own requirements; thus §102(a)/(b) decisions are separable and APA‑reviewable | §102(c)(2)(A) covers "all causes or claims arising from any action ... pursuant to paragraph (1)" including actions under (a)/(b); Congress meant to limit review | APA review rejected: the statutory bar encompasses actions taken to invoke §102(c), so non‑constitutional claims under the APA are precluded. |
| Non‑delegation / separation of powers challenge | §102(c) vests unfettered discretion in DHS to waive numerous laws without intelligible principle or judicial check | §102 supplies an intelligible principle (deter illegal crossings; expeditious construction), identifies the implementing official, and concerns immigration/foreign affairs where Executive has independent authority | Non‑delegation challenge denied: §102 meets intelligible‑principle standard; DHS's independent immigration authority supports broad delegation. |
| Presentment Clause (Art. I, §7) challenge | Allowing waiver of statutes is effectively repeal/amendment without bicameralism and presentment (akin to line‑item repeal) | Waiver does not alter statutory text or repeal statutes; it suspends application for limited purposes Congress authorized | Presentment Clause challenge denied: waivers implement congressional authorization and do not effect a constitutional repeal/amendment like the Line Item Veto. |
| Take Care Clause (Art. II, §3) and other constitutional procedural challenges (due process, access to courts, Tenth Amendment, equal sovereignty) | Secretary failed to "faithfully execute" statutory limits; bar on non‑constitutional review impairs plaintiffs' rights and state sovereignty | Take Care applies to Executive but does not void congressionally authorized discretion; Congress may give exclusive federal jurisdiction and preempt state enforcement where necessary | Court rejected Take Care, access/due process, Tenth Amendment and equal sovereignty claims; plaintiffs failed to show concrete constitutional infirmity sufficient to invalidate §102(c). |
Key Cases Cited
- Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) (courts interpret law; they do not make policy)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing requirements)
- Leedom v. Kyne, 358 U.S. 184 (1958) (narrow exception allowing judicial relief when agency acts in excess of statutory authority)
- MCorp Fin., Inc. v. Bd. of Governors, 502 U.S. 32 (1991) (limits on Kyne exception where statute precludes review)
- Mistretta v. United States, 488 U.S. 361 (1989) (intelligible‑principle test for delegation)
- Whitman v. American Trucking Ass'ns, 531 U.S. 457 (2001) (upholding broad delegations with intelligible principle)
- Clinton v. City of New York, 524 U.S. 417 (1998) (line‑item veto violated Presentment Clause)
- Touby v. United States, 500 U.S. 160 (1991) (upholding delegation with "necessary" standard)
- Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (limits on Executive acting as legislature)
- Shelby Cnty. v. Holder, 570 U.S. 529 (2013) (equal sovereignty principle regarding disparate federal treatment of States)