District Court Decision May Help Pave the Way for Trump Administration’s Border Wall Plans

Legal Sidebari

District Court Decision May Help Pave the
Way for Trump Administration’s Border Wall
Plans
April 2, 2018
The construction of potentially hundreds of miles of fencing and other barriers along the U.S.-Mexico
border is a key pillar of the Trump Administration’s border security strategy. Completing this objective
would likely require the Secretary of the Department of Homeland Security (DHS), acting pursuant to
existing statutory authority, to waive application of laws that the Secretary determined would impede the
expeditious constructing of barriers along the border. A recent decision by Judge Gonzalo Curiel of the
U.S. District Court for the Southern District of California, turning aside challenges to DHS’s exercise of
this waiver authority for two border projects in southern California, is consistent with earlier court
decisions upholding the DHS Secretary’s waiver of numerous laws that might impede border fence
deployment projects along the U.S.-Mexico border. Taken together, these court rulings suggest that those
seeking to constrain the DHS’s ability to waive environmental and other laws that might impede the
construction of border fencing would likely need to pursue legislative options to achieve their ends, as
repeated judicial challenges have been unsuccessful.
Background
Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) is the
primary authority relied upon by DHS to deploy barriers along the U.S. international borders. Initially, the
statute authorized (but did not require) the construction fencing and other barriers “to deter illegal
crossings in areas of high illegal entry into the United States,” and provided immigration authorities with
the power to waive application of the Endangered Species Act and the National Environmental Protection
Act if deemed necessary to ensure the expeditious construction of such fencing. But Congress amended
the statute three times from 2005 to 2007, greatly expanding its potential effect. In addition to requiring
the deployment of fencing along 700 miles of the U.S.-Mexico border, IIRIRA Section 102 also provides
for the deployment of additional barriers and infrastructure to achieve “operational control” of the border.
Significantly as well, amendments to IIRIRA Section 102(c) allow the DHS Secretary to waive “all legal
requirements” that may impede construction of barriers and roads under IIRIRA Section 102.
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These amendments to IIRIRA Section 102, along with increased funding for projects, resulted in the
deployment of several hundred miles of new barriers along the southwest border between 2005 and 2011.
Large-scale fencing projects were accompanied by notices that the Secretary, acting pursuant to IIRIRA
102(c), had waived numerous environmental, historical preservation, and administrative law requirements
determined to impede fence deployment. As noted above, although some of these exercises of waiver
authority were challenged in court, none of these challenges proved successful.
After 2011, fence deployment along additional mileage of the U.S.-Mexico border largely halted, at least
in part due to changing border enforcement priorities by the Obama Administration. But the Trump
Administration has called for the construction of a “physical wall” along at least some portions of the
U.S.-Mexico border. In two waiver determinations, published on August 2 and September 12, 2017, then-
DHS Secretary John Kelly and the subsequent acting DHS Secretary Elaine Duke waived various laws
pursuant to IIRIRA Section 102(c). The purpose of these waivers was to ensure the expeditious
replacement of existing fencing near San Diego and to construct prototype barriers that could serve as
possible models for future barrier construction. These waivers were challenged by the State of California
and other parties before the U.S. District Court for the Southern District of California.
The District Court Opinion
The plaintiffs challenging the exercise of waiver authority under IIRIRA Section 102 raised both statutory
and constitutional arguments. First, the plaintiffs alleged that the waiver determinations were “ultra vires
acts that are not authorized under section 102,” and therefore the government’s decision to move forward
with the projects was in violation of a number of the waived statutes. Specifically, the plaintiffs contended
that the waiver in Section 102(c) should not be interpreted to authorize broad waivers of border fencing
projects, but rather only certain types of projects explicitly mandated by Section 102. Second, the
plaintiffs alleged that the waivers were unconstitutional violations of the non-delegation doctrine,
separation of powers principles, and the Take Care Clause.
Turning first to the plaintiffs’ argument that the challenged waivers were not authorized by statute, the
district court first considered whether IIRIRA Section 102 barred judicial review of the claim. The court
noted that Section 102(c)(2) restricts legal challenges to any action taken by the DHS Secretary pursuant
to the waiver authority except when “alleging a violation of the Constitution of the United States,”
thereby creating an explicit statutory bar on judicial review based on non-constitutional grounds. But the
court recognized a narrow exception this and similar bars on judicial review when an agency actions
“contrary to ‘clear and mandatory statutory language.’” The court concluded that this exception allowed
consideration of plaintiffs’ claims, as they were premised upon the DHS Secretary allegedly exercising
waiver authority in a manner not authorized by the governing statute.
The court turned next to the breadth of the waiver authorization in Section 102(c) and whether the DHS
Secretary permissibly exercised the waiver authority with respect to the two border projects at issue in the
case. The defendants sought a narrow interpretation of the Section 102(c), which by its terms applies to
projects to construct “barriers and roads under this section,” as applying only to those border
infrastructure projects required under IIRIRA Section 102, but not to all border fencing projects generally
authorized by the statute. However, the court found the DHS Secretaries’ broader interpretation of the
waiver authority applied not only to required projects, but to all “physical barriers and roads” authorized
by IIRIRA Section 102 to be plausible. The court therefore deferred to interpretative discretion of the
DHS Secretaries, and declared that the court “cannot conclude that the Secretaries acted in excess of their
delegated powers contrary to a ‘clear and mandatory’ provision in section 102.” As a result of this finding,
and following a conclusion that the federal border projects that were the subject of the waiver
determinations fell within the scope of Section 102, the court rejected the claim that the waivers were
beyond the Secretaries’ legal authority to issue.

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The court then turned to the plaintiffs’ various constitutional claims. The court rejected the argument that
the Section 102(c)’s broad waiver provision was a violation of the non-delegation doctrine and the
separation of powers. The court observed that Congress had specified that DHS may only waive laws in
relation to the construction of barriers and roads under IIRIRA Section 102, and then only if the Secretary
deems such waiver necessary to ensure the expeditious construction of such infrastructure. The court
described these limitations as consistent with Supreme Court precedent stating that delegations provide
“an intelligible principle” to which an agency’s actions must conform. The district court also believed it
relevant that the Executive has “independent and significant constitutional authority” over immigration
enforcement and border security matters, because “Congress can confer more discretion to an entity when
that entity already has significant, independent authority over the subject matter.”
The court also concluded that the plaintiff had not articulated an argument as to how the waivers had
violated the Take Care Clause, finding that the cases cited by the plaintiffs did not provide a basis for
concluding that an exercise of discretionary authority like the waiver determinations violated the clause.
Finally, the court quickly dismissed a number of other allegations of constitutional violations that the
court determined were not applicable. As a result, the court dismissed nearly all of the plaintiff’s
challenges, setting aside only a Freedom of Information Act-based claim that was not addressed in the
decision and will be resolved either via settlement or separate briefing.
Takeaways for Congress
Though the plaintiffs can potentially seek Supreme Court review of the district court’s decision (review of
such decisions by the lower appellate courts is barred by IIRIRA Section 102(c)(2)), the district court’s
decision suggests persons seeking to challenge the DHS Secretary’s use of waiver authority face an uphill
battle. Accordingly, the ability of DHS to pursue fence deployment is most directly affected by the
availability of funding. Indeed, following the district court decision, Congress passed the omnibus
spending bill which authorized $1.57 billion for border fencing and related border security measures.
This authorization funds specific fencing projects, but also restricts funds from use to deploy fencing in
other areas, and further limits use to already deployed types of fencing designs.
The court’s decision may also have broader implications for future border security projects, as it
illustrates the breadth of the DHS Secretary’s authority to waive otherwise applicable requirements that
the Secretary determines would deter the deployment of “physical barriers and roads in the vicinity of the
United States border” authorized under IIRIRA Section 102. Judicial recognition of the constitutionality
of this waiver authority may encourage legislation conferring similar waiver authority for other agency
actions. Indeed, legislation has been introduced that allows DHS to use such waiver authority to facilitate
the deployment of tactical infrastructure in addition to fencing.

Author Information

Adam Vann

Legislative Attorney

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