Can Congress Authorize the President to Ignore Law?

   That provocative question lies at the root of the recent decision by Michael Chertoff, the Homeland Security Secretary, to waive (i.e.,  ignore) environmental laws that might delay or impede the construction of the border fence along the Mexican border.  A New York Times article on the subject is here.  Chertoff derives this authority from a law enacted by Congress that authorizes him at his complete discretion to dispense with "all legal requirements" that might inhibit the fence construction.  Defenders of Wildlife has challenged the validity of this authority in an action,  Defenders of Wildlife v. Chertoff,  in which a cert. petition is now pending.   The petition can be read here.    SCOTUSblog has a posting on the case here.

  The two questions posed are 1) Is this a forbidden delegation of legislative power because the Secretary's discretion is wholly unbounded?  2) Does this authorization amount to a grant to the executive of the power to repeal laws?   These issues echo the line item veto case.  If the delegation doctrine has any life at all, one would think that an absolute unbounded grant of discretion to the executive to ignore law when he thinks it's a good idea to do so in order to facilitate execution of some other law would be such an impermissible delegation.  What is the intelligible standard to which the executive must conform?  If a line item veto was an impermissible power to repeal a law why isn't this authority vested in Secretary Chertoff an equally impermissible power to repeal laws?  Subversive minds would like to know.  

Comments

[Bill Araiza]

Calvin asks very good and hard questions about the statute. But what makes the statute even more troubling is that it precludes judicial review of the DHS Secretary's waiver decisions. That provision would seem to raise even greater non-delegation concerns, given the close relationship between the modern non-delegation principle and judicial review. For what it's worth I'm drafting an amicus brief on behalf of law professors, urging the Court to take this case to resolve the difficult issues the case presents. If anyone is interested in possibly signing onto the brief, please contact me at bill.araiza@lls.edu. The brief is due April 17, and we hope to get a draft out for review by very early next week.