Legal Commentary

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.