Almost a year has gone by since the Senate passed its most recent comprehensive immigration bill. In that time, the House has not considered the legislation, though a range of politicians and stakeholder groups have continued to press vigorously for comprehensive reform.
The bill—S.B. 744—included allocations for enhanced border security, and called for the construction of an additional 700 miles of pedestrian fence on the border. Republican lawmakers have pushed for increased border security as an integral part of any reform package, suggesting that if the House passes S.B. 744 or other immigration reform legislation, it will inevitably include border fence provisions.
Support for an expanded fence remains strong despite claims about the ineffectiveness, unconstitutionality, and negative environmental impacts of the hundreds of miles of border wall that the Department of Homeland Security has already built.
Exemption from Environmental Laws
The border wall has attracted criticism in part because its construction was, and its continued operation is, exempt from important environmental and administrative laws, including the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), The Clean Water Act (CWA), the Administrative Procedures Act (APA), and many others. Since the passage of the REAL ID Act in 2005, the Secretary of Homeland Security, has had the “the authority to waive, and shall waive, all laws such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section.”
The law also exempts the Secretary’s waivers from judicial review of all non-constitutional claims, stating that “a cause of action or claim may only be brought alleging a violation of the Constitution of the United States.” It also disallows review by any intermediate courts: “an interlocutory or final judgment, decree, or order of the district court may be reviewed only upon petition for a writ of certiorari to the Supreme Court of the United States.”
Limited Judicial Recourse
The waiver was used five times between 2005 and 2008 to exempt the wall from thirty-six federal and state laws. All told, the Secretary has issued waivers for over 500 miles of border barriers and roads. One waiver was issued in response to a court challenge in Arizona, but the other waivers appear to have been issued preemptively. By waiving the application of dozens of comprehensive laws, DHS eliminated the otherwise-mandated mechanisms for environmental oversight of the construction of the border wall, removing the need for any permits, putting critical habitat and animal populations at risk, and arguably violating international legal norms. From a policy perspective, critics claim that the waiver power’s stated purpose, to expedite the construction of the border wall, justifies neither the breadth of the waiver nor its lack of accountability in the courts.
Facial challenges to the waiver’s constitutionality have focused on the REAL ID Act’s lack of an intelligible principle for applying the power. Challengers have argued that, without an intelligible principle for DHS to determine when the use of the waiver power is justified, the power amounts to a Congressional grant of legislative authority to an executive agency. Similar challenges have characterized the waiver power as grant of power to an executive officer to “partially repeal laws,” which is unconstitutional under the court’s nondelegation doctrine. Finally, challengers have argued that the statute unconstitutionally restricts judicial review, since it explicitly strips intermediate appellate courts from hearing the case. The District Court opinions in these cases have been criticized for failing to recognize the power’s unprecedented nature and for mischaracterizing the waiver power’s geographic breadth, as well as the types of laws that can be waived. Various District court decisions upheld the power by explicitly relying on the assumption that it applied only to the geographic area at hand, while the power applies, in fact, to every mile of the border with Mexico. Others facially upheld the law by analogizing the law to other waiver powers that allowed for the waiver of only one or two laws.
Although all judicial challenges to the waiver power have failed thus far, there are other strategies that opponents may pursue. In particular, advocates could shift their focus from the waiver power itself to the scope of the waiver authority under the statutory language. However, the very flaws that make the waiver power constitutionally suspect also make its existence and implementation immune from any real judicial challenge: without a grant of certiorari (which the U.S. Supreme Court has repeatedly denied), the decisions of the district courts upholding the waiver power have gone unchallenged in the U.S. judicial system.
Policy Consequences of the Waivers
Without the procedural and substantive protections of the bedrock American environmental laws, environmental resources and populations in the border region have been exposed to a much greater risk of environmental impacts than would otherwise be permitted under U.S. federal law.
Likewise, without a Congressional repeal of Section 102(c), future border wall construction would be subject to the same waiver power as sections of the wall that have already been built. While S.B. 744 called for an Environmental Impact Statement in accordance with NEPA for any future border projects, the concession appears to be entirely superficial; the bill explicitly states that the Environmental Impact Statements typically required “shall not control, delay, or restrict actions by the Secretary to achieve effective control on Federal lands.” It also explicitly exempted new border wall construction from NEPA-imposed protections, requiring that “any decision by the Secretary concerning any rulemaking action, plan, or program described in this section shall not be considered to be a major Federal action subject to review under the National Environmental Policy Act of 1969.” It seems, then, that while the proposed legislation says that Environmental Impact Statements would be necessary if the wall amounted to a major federal action, in practice impact statements would not be issued since the wall is, by definition, not a major federal action according to the bill.
Such a waiver power does not make for good legislative precedent. While the relative values of border security and environmental protection may be debated, the wall’s exemption from every applicable environmental protection law makes a clear statement that such laws only apply when it is expedient to do so. If the border wall can be exempted, what other pressing federal projects will the waiver power soon cover? And if comprehensive environmental protection laws are to be waived whenever it is politically expedient, can those laws really serve the purpose for which they were intended?