Delegation and judicial review.

• Author: Merrill, Thomas W.
• Position: Separation of Powers in American Constitutionalism

One of the subthemes in the delegation debate concerns the importance of judicial review. The Supreme Court has often upheld broad delegations to administrative actors and in so doing has pointed out that judicial review is available to safeguard citizens from the abuse of unconstrained government power. (1) Broad delegations of power to executive actors are constitutionally permissible, the Court has suggested, in significant part because courts stand ready to assure citizens that the executive will discharge its discretion in a manner consistent with Congress's mandate and in a fashion that otherwise satisfies the requirements of reasoned decision making. (2)

Administrative law professors have underscored this point. Professor Kenneth Culp Davis, in his inimitable style, took the theme to the utmost extreme. He argued that what is really significant about the nondelegation doctrine is not that Congress must provide an intelligible principle, but that judicial review is available to make sure that administrative agencies follow the principle. (3) What matters is that someone, somewhere, supplies a standard for the exercise of administrative discretion and that the courts can enforce this standard. (4) It does not really matter where the standard comes from. Congress might supply it, but so too might an agency or even a court. The important thing is to have some standard to control discretion, plus judicial review.

The Court rejected this particular idea in Whitman v. American Trucking Associations. (5) Justice Scalia, writing for the Court, dismissed as "internally contradictory" the notion that an agency could cure a nondelegation problem by adopting a self-limiting standard. (6) As he explained: "The very choice of which portion of the power to exercise--that is to say, the prescription of the standard that Congress had omitted--would itself be an exercise of the forbidden legislative authority." (7)

What has been less noticed about American Trucking is that the Court, having interred the self-limiting-standards idea, also omitted the ritual bow to judicial review as an important safeguard against abuses of broad delegations. To be sure, the Court reaffirmed that the question whether a statute violates the nondelegation doctrine is for the courts to decide. (8) And the Court engaged in vigorous judicial review of the agency decision that triggered the nondelegation challenge, holding that the agency's decision was unreasonable. (9) But neither Justice Scalia nor any of the concurring Justices said that the availability of judicial review was itself a relevant element in resolving the delegation challenge.

Which leads to my topic: What is the role of judicial review in determining the constitutionality of broad delegations of power in a world in which the intelligible principle doctrine is, for practical purposes, dead? To make this question concrete, let me describe a petition for certiorari recently denied by the Supreme Court in County of El Paso v. Napolitano. (10) The petition was filed in December 2008 by the Yale Law School Supreme Court Clinic, of which I am currently a supervisor. The Court denied certiorari on June 15, 2009, (11) after the conference relisted the petition seven times. (12) As is usual, the Court gave no explanation for the denial.

The petition challenged an amendment to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), (13) which instructs the Secretary of Homeland Security to build a barrier fence along portions of the border between Mexico and the United States to help control illegal entry into the United States. (14) Congress sought to assure that the fence was built as quickly as possible and, in particular, that this multimillion dollar construction project would not become bogged down in litigation. To achieve this objective, Congress amended IIRIRA in 2005. (15) The amended statute, in Section 102(c), delegates authority to the Secretary of Homeland Security to "waive all legal requirements such Secretary, in such Secretary's sole discretion, determines necessary to ensure expeditious construction of [the fence]." (16) The statute further provides that federal district courts have exclusive jurisdiction to hear "all causes or claims arising from any" waiver decision and that the only cause of action or claim that may be brought is one "alleging a violation of the Constitution of the United States." (17) The only avenue for appellate review from the district court's ruling on constitutionality is by petition for certiorari to the Supreme Court. (18) All other claims and appeals are barred. In effect, IIRIRA now effectively gives the Secretary of Homeland Security very broad discretionary authority to declare the construction site a no-law zone, based on a finding that the abrogation of laws is "necessary to ensure expeditious construction." (19)

In April 2008, Secretary of Homeland Security Michael Chertoff issued orders waiving thirty-seven different federal statutes that might apply to the construction of roughly seven hundred miles of fence stretching across four states. (20) The waived federal laws include nearly all federal environmental and land use laws as well as the Administrative Procedure Act (APA). (21) Although IIRIRA is not explicit as to whether it confers authority on the Secretary to preempt state and local laws, Secretary Chertoff also "waive[d]" all state or other laws "related to" the waived federal statutes. (22) The orders recited that the Secretary found these waivers "necessary to ensure expeditious construction" of the fence, but offered no further explanation. (23)

Because Section 102(c) does not cut off challenges to the constitutionality of the IIRIRA, an affected party can file an action in federal district court alleging that the statute authorizing these waivers violates the nondelegation doctrine. Given American Trucking and the many other decisions upholding extremely broad delegations against nondelegation challenges, (24) however, it would be futile to challenge Section 102(c) solely on this ground. The standard "necessary in order to assure expeditious completion" is just as intelligible as "fair and reasonable," "requisite to protect the public health," or any of the other vague standards that the Court has held not to transgress the limits of permissible delegation.

Yet Section 102(c) also denies affected persons any opportunity to seek judicial review of the merits of a waiver decision: The IIRIRA expressly precludes challenges to the waivers on other than constitutional grounds, and for good measure the Secretary's order also waives the APA. (25) The County of El Paso petitioners had no way, for example, to challenge the finding that it was necessary to waive the Eagle Protection Act or the Native American Graves Protection and Repatriation Act. Nor could they contest the Secretary's interpretation of IIRIRA as authorizing the waiver of state and local laws as well as federal laws. This last feature of the waiver orders might prove especially vexing...