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WASHINGTON � Congress delegates authority to executive branch agencies all of the time. But did it go too far, crossing a constitutional line in the sand in 2005 in the name of illegal immigration and national security? Federal construction of a fence along the U.S.-Mexico border has triggered considerable controversy in the border states, primarily among private landowners whose property may be affected by the planned 700 miles of fencing. However, the fence also has raised environmental concerns. Two major environmental groups, aided by a veteran U.S. Supreme Court advocate and a law school clinic, are heading to the Supreme Court to challenge what they and others believe is Congress’ broadest grant of authority ever enacted. Section 102 of the REAL ID Act grants the Secretary of the Department of Homeland Security (DHS) the authority to waive any or all legal requirements that may interfere with the expeditious construction of fences and roads at the nation’s international borders. Appeals in litigation involving the waiver must be taken directly to the Supreme Court and challenges can only be made on constitutional grounds. DHS Secretary Michael Chertoff has exercised the waiver authority three times: In September 2005, he used it to finish building 14 miles of fence on disputed land in San Diego; in January 2007, for fencing in the Barry M. Goldwater Air Force Range in Arizona; and, in October 2007, to build a portion of the wall and road in the San Pedro Riparian National Conservation Area in southeastern Arizona. The San Pedro waiver set aside 19 federal environmental statutes and came after a federal district judge had issued a preliminary injunction temporarily halting construction of the fence in an area renowned as one of the most biologically diverse in the nation. In exercising the waiver, Chertoff said the court litigation was designed to delay construction and “that delay will result in more drug and human smuggling through this corridor” � an unacceptable national security risk. The same district judge who issued the injunction at the behest of Defenders of Wildlife and the Sierra Club subsequently rejected their constitutional challenge to the DHS waiver, thus setting the stage for the high court appeal. “Our case raises a sort of singular issue: Can Congress tell agencies they can override provisions of law at will?” said Robert Dreher, vice president for conservation law at Defenders of Wildlife. “We think whoever the next president is will be comfortable being told by the Supreme Court, ‘No, you can’t. If you want to do so, go to Congress.’ “ Any teeth? The two groups have retained Andrew Pincus of Mayer Brown to prepare a Supreme Court petition for certiorari, said Dreher. Pincus will be assisted by the Yale Law School Supreme Court clinic, which Pincus heads along with Chicago-based Mayer Brown’s Charles Rothfeld. “The heart of our argument is what’s happening here is really governed by the Supreme Court’s 1998 line-item veto decision,” said Dreher. “The court there said Congress cannot give to the president the power to select portions of existing law to be repealed.” In practical effect, Dreher said, there is no difference between the waiver and the sequestration of spending items in the line-item veto. “The effect is to say existing law has no legal effect, at least as to the border fence project,” he said. “Congress can direct the waiver or exempt a project directly from a law, but it can’t tell the secretary to pick and choose the laws.” Dreher said the environmental groups will try not to rely on the nondelegation doctrine, explaining that a delegation challenge has not succeeded in the high court since the 1930s. “We argue this is a different species of delegation,” he said. The nondelegation doctrine basically enforces a “fundamental civic books understanding of the separation of powers under which Congress is not supposed to abdicate the legislative power,” said separation of powers scholar Peter Shane of Ohio State University Michael E. Moritz College of Law. If the nondelegation doctrine had any teeth in it, he added, “This would be the poster statute for Congress going too far. There is a case to be made that this is far worse than what Congress did with the line item veto because the secretary can repeal so much. “What if the secretary decided it’s a distraction to answer [Freedom of Information Act] requests about the border fence? Can he suspend FOIA? There is no obvious boundary to it.” The high court has never been able to articulate an objectively enforceable line between statutes representing legislative abdication of authority and those conferring legitimate discretion, said Shane. More recently, said Shane and delegation scholar David Schoenbrod of New York Law School, the court looks for an “intelligible principle” articulated by Congress in the particular statute and whether the administrator has followed it. “But it’s clear what passes for that is quite loose and the court has upheld standards as vacuous as the ‘public interest,’ ” said Schoenbrod. There have been other court challenges to the Section 102 waiver authority, according to DHS, and those have been unsuccessful thus far. Whether the court will choose to get into this case is difficult to predict, both scholars said. And if it did, given past related votes by justices Antonin Scalia and Clarence Thomas � and the executive branch deference shown by Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. in their prejudicial careers � said Shane, “It’s hard to imagine there wouldn’t be at least four votes to uphold the waiver authority.” But Defenders of Wildlife’s Dreher is not deterred. “We think there is a middle ground here where, with any luck, we can convince the court.”

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