Environmental groups take one last legal shot to stop border wall

Trees were felled and clearing began Monday along the San Pedro River.

WASHINGTON, D.C. — In a last-ditch effort to halt construction of the border wall across sensitive, protected areas in Arizona, California, New Mexico and Texas, the Center for Biological Diversity (CBD), Animal Legal Defense Fund, Defenders of the Wildlife and Southwest Environmental Center are petitioning the U.S. Supreme Court to answer a question: Has President Donald Trump overstepped his executive powers in executing legislative powers, thus blurring the lines between the two separate and equal branches of the federal government in building a wall along the southern border?

CBD attorney Jean Su said in an interview the petition for a writ of certiorari is essentially the same argument the environmental groups have been making for the past year, just in a different form.

A writ of certiorari is an appellate proceeding for re-examination of actions of a court of appeals by the losing parties, she explained. It includes statements of the facts of the case, the legal questions presented for review and arguments as to why the court should grant the writ.

Specifically, the petition reads: “This action presents a constitutional challenge to the Secretary’s issuance of six waiver decisions, made pursuant to Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) § 102© in 2018 and 2019, waiving more than forty federal laws — and all related state, local, and tribal laws, regulations, and legal requirements deriving therefrom — which are otherwise applicable to the construction of 145-miles of steel-bollard walls along the U.S.-Mexico border in Arizona, California, New Mexico, and Texas.”

Su said the executive and legislative branches have specific duties according to the Constitution. Congress alone is given the “distinct and exclusive authority to establish the relative priority of policies.” Neither President Trump nor his administration have the authority to waive the laws Congress enacted, she said.

The environmental attorneys argue the IIRIRA, which has been given as the reason for building a border wall, “corrupts that carefully-wrought architecture. The statute endows an unelected executive official with quintessential legislative authorities, including the policymaking power to unilaterally establish the relative priority of border wall construction against all other legally protected public and private interests, violating the non-delegation doctrine of the Constitution and the lawmaking power to independently nullify the statutes securing those interests without complying with bicameralism and presentment procedures.”

In Arizona alone, 41 federal and state laws have been set aside for wall construction across some of the state’s most fragile and remote desert environments from the San Bernardino National Wildlife Refuge on the easternmost part of the state to the SPRNCA to Organ Pipe Cactus National Monument near Quitobaquito Springs and on west to Yuma. The Arizona Desert Wilderness Act, the Arizona-Idaho Conservation Act of 1988 — which formed the SPRNCA — and numerous tribal, cultural and archeological protective regulations have been set aside so the wall construction can proceed without lengthy environmental assessments or consideration of protected and threatened wildlife both plant and animal and permits, Su said.

The petition argues, “By waiving laws like the National Environmental Policy Act, for example, the Secretary evades mandates to analyze and disclose the wall’s adverse impacts on communities and to facilitate substantive public input, thereby undermining core democratic values that also undergird our system of government.

“Thus, as now construed by Department of Homeland Security (DHS), the Executive wields the authority to waive any and all federal, state, local, or tribal laws in perpetuity as applied to anywhere in the vicinity of the U.S. borders, based only on DHS’s unsupported and unreviewable assertion that such waiver is necessary for expedited wall construction. It is that extraordinary, unprecedented executive encroachment on core legislative authority that is at issue in this petition.”

The petitioners note they do not dispute Congress has the right to make laws that “prioritize border wall construction above any other legally protected interests— or, for that matter, over all other such interests. However, Congress did not legislate any such prioritization here.”

Su pointed out, “Justice Gorsuch has opined that the fundamental question in assessing the constitutionality of a congressional delegation should be: ‘Did Congress, and not the Executive Branch, make the policy judgments?’ Here, the answer is, indisputably, ‘no.’ The Executive, and not Congress, is making the overarching policy judgment as to which of the myriad legally protected national, state, local, and tribal interests are to be sacrificed in the name of border wall construction.”

The petitioners emphasized “that the waivers now apply to approximately one-third of the ... entire U.S.-Mexico border, with respect to nearly fifty federal laws and innumerable state, local and tribal laws. Taken together, the Secretary’s unilateral decision to issue the waivers, along with new § 102© waivers that are sure to come, effectively repeal the application of an ever-increasing number of federal statutes as applied to an ever-expanding number of projects.”

The waiver authority affects millions of people on or near the border and whose legal rights and interests can be eliminated “with a stroke of the pen.”

It will take some time before the SCOTUS decides to take the case. There are around 4,000 such appeals made every year and only 40 are selected for a hearing, she said.

However, she also noted Justices Gorsuch and Kavanaugh were “very interested in the question of delegation of powers. It’s a very small chance.”

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