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Environment & Energy Report

Trump Lawyers Urge Supreme Court to Reject Border Wall Case

May 21, 2020, 7:52 PM

The Trump administration is urging the U.S. Supreme Court to steer clear of green groups’ complaints about environmental waivers for the U.S.-Mexico border wall.

Government lawyers told the justices they should deny a petition from the Center for Biological Diversity and other groups that say the waivers are unconstitutional.

The dispute centers on the Illegal Immigration Reform and Immigrant Responsibility Act, or IIRIRA, which allows the Department of Homeland Security to waive the National Environmental Policy Act, Endangered Species Act, and other laws to construct barriers and roads along the border with Mexico.

Homeland Security officials have used the law repeatedly in recent years to streamline construction in New Mexico, Arizona, Texas, and California.

Environmental groups say the approach violates the Constitution’s separation of powers among the branches of government and what’s known as the nondelegation doctrine, which prohibits Congress from giving agencies lawmaking authority.

After losing several challenges in district courts, the Center for Biological Diversity, Defenders of Wildlife, the Animal Legal Defense Fund, and the Southwest Environmental Center in January petitioned the Supreme Court to get involved. The justices declined to take up a similar border wall case in 2018.

Delegating Authority

Solicitor General Noel Francisco pushed back in Thursday’s filing, saying Congress properly delegated authority to the executive branch, and set clear limits on how the Department of Homeland Security should use it.

The government’s brief stressed that the Supreme Court has used the nondelegation doctrine to strike down federal laws only twice in modern history, and argued that IIRIRA’s waiver authority meets the court’s standard for acceptable delegations of power.

“Congress itself is well positioned to assess whether the Secretary has acted within the limitations prescribed by Congress and to take action if it concludes that the Secretary has exceeded those limitations,” he wrote.

Constitutional and administration law experts have paid particular attention to nondelegation challenges over the past two years, as some justices have shown an interest in reviving the rarely used doctrine to invalidate laws.

The case is Ctr. for Biological Diversity v. Wolf, U.S., No. 19-975, brief filed 5/21/20.

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergindustry.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com; Rebecca Baker at rbaker@bloombergindustry.com

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