Refining the nondelegation doctrine in light of real id act section 102(C): Time to stop bulldozing constitutional barriers for a border fence

Catholic University Law Review

Volumn 58, Issue 3, 2009, Pages 851-884

  Clark, Bryan ^a  

^a CATHOLIC UNIVERSITY OF AMERICA   (United States)

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EID: 68249119986     PISSN: 00088390     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (313)

1. ROBERT FROST, Mending Wall, in THE POCKET BOOK OF ROBERT FROST'S POEMS 94, 95 (Louis Untermeyer ed., Washington Square Press 1962) (1930).
2. Consolidated Appropriations Act of 2008, Pub. L. No. 110-161, § 564 (a) (2) (B) (ii), 121 Stat. 1844, 2090 (2007) (to be codified at 8 U. S. C. § 1103 (b));
3. see also BLAZ NUÑEZ-NETO & YULE KIM, CRS REPORT FOR CONGRESS, ORDER CODE RL 33659, BORDER SECURITY: BARRIERS ALONG THE U. S. INTERNATIONAL BORDER 2 (2008), available at http://www.fas.org/sgp/crs/ homesec/RL33659.pdf. As of December 19, 2008, 553 miles of fencing had been built. U. S. Department of Homeland Security, Southwest Border Fence, http://www.dhs.gov/xprevprot/programs/border-fence-southwest.shtm (last visited Apr. 3, 2009). This puts DHS behind schedule to meet its statutory deadline of building 670 miles by the end of 2008. Richard M. Stana, Director, Homeland Security and Justice Issues, U. S. Government Accountability Office GAO-08-1141T, Testimony Before the Committee on Homeland Security, House of Representatives, Secure Border Initiative: Observations on Deployment Challenges 20 (Sept. 10, 2008).
4. OFFICE OF NAT'L DRUG CONTROL POLICY, NATIONAL DRUG CONTROL STRATEGY 2008 ANN. REP. 48, available at http://www.whitehousedrugpolicy.gov/publications/policy/ndcs08/2008ndcs.pdf.
5. U. S. DEP'T OF HOMELAND SEC., OFFICE OF IMMIGRATION STATISTICS, POLICY DIRECTORATE, IMMIGRATION ENFORCEMENT ACTIONS: 2006, at 1 (2008) [hereinafter OFFICE OF IMMIGRATION STATISTICS].
6. See Secure Fence Act of 2006, Pub. L. No. 109-367, §§ 2-3, 120 Stat. 2638, 2638-39 (to be codified at 8 U. S. C. § 1103 (b)).
7. Editorial, Haste Lays Waste: Ill-Planned Security Fencing Along the Border Would Ravage the Communities it's Meant to Protect, HOUSTON CHRON., Oct. 4, 2007, at B8 [hereinafter WHaste Lays Waste] (Texas's homeland security director was quoted as saying '"a fence isn't going to work. It's not the solution. '"). Congressman Raul Grijalva, who represents the 7th District of Arizona, which is situated along the U. S.-Mexico border, see About Raul, http://grijalva.house.gov/?sectionid= 2§iontree=2 (last visited Apr. 3, 2009), even introduced legislation to repeal section 102 (c) of the REAL ID Act, The Borderlands Conservation and Security Act of 2007, H. R. 2593, 110th Cong. § 5 (b).
8. See Consolidated Appropriations Act, § 564 (a) (2) (B) (ii), 121 Stat, at 2090 (providing the DHS Secretary broad discretion to construct 700 miles of border fencing based on what is "most practical and effective");
9. REAL ID Act of 2005, Pub. L. No. 109-13, Div. B § 102 (c), 119 Stat. 231, 306 (to be codified at 8 U. S. C. § 1103 (c)) (providing the Secretary with broad authority to "waive all legal requirements" the Secretary deems "necessary to ensure expeditious construction" of the U. S.-Mexico border fence);
10. see also Randal C. Archibold & Julia Preston, Despite Growing Opposition, Homeland Security Stands by Its Fence, N. Y. TIMES, May 21, 2008, at A18 ("Opposition to the fence intensified... after [DHS Secretary] Chertoff used authority provided by Congress to waive more than two dozen environmental laws and others to push ahead with construction. ").
11. See Complaint for Injunctive and Declaratory Relief at 2-3, Tex. Border Coal. v. Chertoff, No. 1:08-cv-00848 (D. D. C. filed May 16, 2008).
12. 527 F. Supp. 2d 119, 126 (D. D. C. 2007), cert. denied, 128 S. Ct. 2962 (2008).
13. See OFFICE OF IMMIGRATION STATISTICS, supra note 4, at 1 (noting that, in 2006 alone, the DHS "apprehended more than 1, 206,000 foreign nationals," of whom "[n]early 88 percent were natives of Mexico"). Roughly ninety-eight percent of these apprehensions occurred along the southwest U. S.-Mexico border. Id. at 3. In the same year DHS removed 272, 389 aliens from the U. S., sixty-seven percent of whom were from Mexico. Id. at 1. DHS also removed 95, 752 known criminal aliens. Id.;
14. see also Archibold & Preston, supra note 7 (according to experts, "[a]s many as 2,000 immigrants a day still cross the Southwest border illegally").
15. See Archibold & Preston, supra note 7 (questioning the efficacy of the border fence given that "82 percent of the immigrants who succeeded in crossing said they came through San Diego... where fences have been in place since 1993");
16. Randal C. Archibold, Government Issues Waiver for Fencing Along Border, N. Y. TIMES, Apr. 2, 2008, at A18 (noting the Department of Interior's objections to the DHS Secretary's border fence construction decisions);
17. Haste Lays Waste, supra note 6 (reporting the environmental and economic impact of the location of border fence on local communities).
18. See Defenders of Wildlife, 527 F. Supp. 2d at 126.
19. See U. S. CONST, art. I, §§ 1, 8.
20. See id. art. I, § 1.
21. Defenders of Wildlife, 527 F. Supp. 2d at 126;
22. see also Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 472 (2001) (holding that the text of Article I of the U. S. Constitution "permits no delegation of [Congress's legislative] powers").
23. Mistretta v. United States, 488 U. S. 361, 371 (1989).
24. Buckley v. Valeo, 424 U. S. 1, 120-21 (1976) (per curiam);
25. THE FEDERALIST NO. 47, at 249 (James Madison) (George W. Carey & James McClellan eds., 2001).
26. JOHN LOCKE, Two Treatises of Government, in TWO TREATISES OF GOVERNMENT AND A LETTER CONCERNING TOLERATION 163 (Ian Shapiro, ed. 2003).
27. Id.
28. Field v. Clark, 143 U. S. 649, 692 (1892). Though not expressly stated, the principle of the nondelegation doctrine was recognized by the Court as early as 1813. See Cargo of the Brig Aurora v. United States, 11 U. S. (7 Cranch) 382, 383, 386, 388 (1813).
29. Buckley, 424 U. S. at 121; THE FEDERALIST NO. 48 (James Madison), supra note 17, at 256.
30. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring).
31. See Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 472 (2001).
32. See Steven F. Huefner, The Supreme Court's Avoidance of the Nondelegation Doctrine in Clinton v. City of New York; More than "A Dime's Worth of Difference", 49 CATH. U. L. REV. 337, 337 (2000).
33. J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 406, 409 (1928);
34. see also Whitman, 531 U. S. at 472. The rationale is that Congress retains, and does not delegate, its legislative power where it lays down a general policy and gives guidance to its delegate in carrying out that policy. Mistretta v. United States, 488 U. S. 361, 372-73 (1989).
35. Patrick M. Garry, Accommodating the Administrative State: The Interrelationship Between the Chevron and Nondelegation Doctrines, 38 ARIZ. ST. L. J. 921, 933-34 (2006) ("[W]hile acknowledging the intelligible principle test as the measure of whether a statute violates the nondelegation doctrine, the Court has declined to give any strict definition of an intelligible principle.").
36. Compare Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. CHI. L. REV. 1721, 1721-22 (2002) (arguing that the nondelegation doctrine is a fiction and should be buried once and for all), with Larry Alexander & Saikrishna Prakash, Reports of the Nondelegation Doctrine's Death are Greatly Exaggerated, 70 U. CHI. L. REV. 1297, 1297-1300 (2003) (arguing that "the nondelegation doctrine is alive and kicking").
37. See Mistretta, 488 U. S. at 371-72;
38. see also THE FEDERALIST NO. 47 (James Madison), supra note 17, at 249 ("The accumulation of all powers, legislative, executive, and judiciary, in the same hands... may justly be pronounced the very definition of tyranny.");
39. THE FEDERALIST NO. 48 (James Madison), supra note 17, at 256 (noting that the separation of powers "does not require that the legislative, executive, and judiciary departments, should be wholly unconnected with each other").
40. William Howard Taft, who experienced the different roles of the executive and judicial branches first-hand as the twenty-seventh President of the United States and tenth Chief Justice of the Supreme Court famously stated: "In determining what [Congress] may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination." J. W. Hampton, 276 U. S. at 406.
41. See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 287 (2d ed. 2005) (noting that formalists interpret Article I of the Constitution to impose rigid separation of powers restrictions enforced by the judiciary).
42. See id. (explaining that functionalists, on the other hand, assert that where the political branches-Congress and the Executive-agree, courts should invalidate their actions only in exceptional circumstances).
43. See Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 474-75 (2001) ("[The Court has] 'almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.'" (quoting Mistretta, 488 U. S. at 416 (Scalia, J., dissenting))).
44. The two concurring opinions in Whitman epitomize this debate. The majority opinion, penned by Justice Scalia, applies the traditional "intelligible principle" doctrine showing extreme deference to Congress. Id. at 472. Justice Thomas, in his concurring opinion, invites the opportunity to reconsider the Court's intelligible principle jurisprudence, noting that "the Constitution does not speak of 'intelligible principles[,]'" and that he is "not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power." Id. at 487 (Thomas, J., concurring). On the other hand, Justice Stevens, joined by Justice Souter, argues that the Court should "frankly acknowledg[e]" that Congress can delegate its legislative power so long as it is "adequately limited by the terms of the authorizing statute." Id. at 488 (Stevens, J., concurring).
45. See id. at 474 (majority opinion). Some scholars argue that the Court also applied the nondelegation doctrine to invalidate the Bituminous Coal Conservation Act of 1935 in Carter v. Carter Coal Co., 298 U. S. 238 (1936). See, e.g., MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960, at 207-08 (1992). However, in Carter v. Carter Coal Co., 298 U. S. 238 (1936), the Court did not invalidate section 3 (g) of the Act as an unconstitutional delegation under the nondelegation doctrine, but rather invalidated the Act on the basis of the presently disfavored theory of economic substantive due process under the Fifth Amendment, id. at 310-11;
46. see also Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U. S. 607, 686-87 (1980) (Rehnquist, J., concurring) (distinguishing the nondelegation doctrine from Lochner-Era economic substantive due process).
47. REAL ID Act of 2005, Pub. L. No. 109-13, Div. B § 102 (c), 119 Stat. 231, 306 (to be codified at 8 U. S. C. § 1103 (c)).
48. Id. § 102 (c) (1).
49. Id.
50. Id. § 102 (c) (2).
51. Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 73 Fed. Reg. 18, 293, 18, 293 (Apr. 3, 2008);
52. Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 72 Fed. Reg. 60, 870, 60, 870 (Oct. 26, 2007);
53. id. at. 2,535 (Jan. 19, 2007);
54. Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 70 Fed. Reg. 55, 622, 55, 623 (Sept. 22, 2005). Specifically, the Secretary waived "all federal, state, or other laws, regulations and legal requirements of, deriving from, or related to the subject of these laws "in their entirety, with respect to the construction of roads and fixed and mobile barriers" in certain areas of "high illegal entry." Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act, 73 Fed. Reg. at 18, 293.
55. Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119, 120, 126 (D. D. C. 2007), cert. denied, 128 S. Ct. 2962 (2008). Others have also challenged, and continue to challenge, the constitutionality of section 102 (c) of the REAL ID Act. See County of El Paso v. Chertoff, No. EP-08-CA-196, 2008 WL 4372693, at *1-2 (W. D. Tex. Aug. 29, 2008);
56. Complaint for Injunctive and Declaratory Relief, supra note 8, at 2-4.
57. Defenders of Wildlife, 527 F. Supp. 2d at 126-27.
58. Most scholarly work on the nondelegation doctrine advocates either the death of the doctrine or a radical reinvigoration of it. Compare Posner & Vermeule, supra note 27, at 1721-22 ("In our view there just is no constitutional nondelegation rule, nor has there ever been [one]."), with Alexander & Prakash, supra note 27, at 1297-99 ("[T]he nondelegation doctrine is alive and kicking.").
59. See, e.g., Defenders of Wildlife, 527 F. Supp. 2d at 129 (declining to find unconstitutional delegation based on a superficial review of precedent).
60. U. S. CONST. art. I, § 1 (emphasis added).
61. See Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 472 (2001).
62. Id. at 472;
63. see also Panama Refining Co. v. Ryan, 293 U. S. 388, 421 (1935) ("The Congress manifestly is not permitted to abdicate or to transfer to others, the essential legislative functions with which it is thus vested.").
64. See supra notes 17-23 and accompanying text.
65. J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 406 (1928) (emphasis added).
66. See Whitman, 531 U. S. at 474-75 (listing the principles the Court has upheld as being sufficiently intelligible, including seemingly vague principles such as in the "public interest").
67. See id. at 487 (Thomas, J., concurring).
68. Id. at 472 (majority opinion).
69. In Federal Power Commission v. New England Power Co., Justices Marshall and Brennan concurred, stating that the nondelegation doctrine was as "moribund" as the economic substantive due process notion of the Lochner Era, which ended in the mid-1930s. 415 U. S. 345, 352-53 (1974) (Marshall, J., concurring in the result of Federal Power Commission and dissenting in National Cable Television Ass 'n v. United States, 415 U. S. 336 (1974)).
70. STEPHEN G. BREYER ET AL., ADMINISTRATIVE LAW AND REGULATORY POLICY: PROBLEMS, TEXT, AND CASES 44 (5th ed. 2002).
71. See Whitman, 531 U. S. at 474 ("In the history of the Court we have found the requisite 'intelligible principle' lacking in only two statutes....");
72. see also A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 541-42 (1935);
73. Panama Refining Co. v. Ryan, 293 U. S. 388, 430, 433 (1935).
74. National Industrial Recovery Act, ch. 90, §§ 3, 9 (c), 48 Stat. 195, 196-97, 200 (1933);
75. see also Schechter, 295 U. S. at 541-42; Panama Refining, 293 U. S. at 430.
76. BREYER ET AL., supra note 51, at 45;. Huefner, supra note 24, at 352.
77. Panama Refining, 293 U. S. at 410-11 (1935).
78. National Industrial Recovery Act § 9 (c), 48 Stat, at 200;
79. see also Exec. Order No. 6, 204 (1933), reprinted in 2 PUBLIC PAPERS AND ADDRESSES OF FRANKLIN D. ROOSEVELT 282 (Random House 1938) [hereinafter PUBLIC PAPERS]; Exec. Order No. 6, 199 (1933), reprinted in PUBLIC PAPERS, supra, at 281.
80. Panama Refining, 293 U. S. at 430. Ironically, the Court buttressed its reasoning by finding that "[nothing] would be left of limitations upon the power of the Congress to delegate its law-making function" if section 9 (c) were permitted to stand. Id.
81. Schechter, 295 U. S. at 519-23.
82. National Industrial Recovery Act § 3 (a), 48 Stat. at 196.
83. Id. § 3 (b).
84. Schechter, 295 U. S. at 541-42. Before concluding that section 3 (a) of the NIRA was an unconstitutional delegation, the Court painstakingly discussed the need to provide Congress broad latitude in setting policy and delegating the details to others in the interest of maintaining a functional government. Id. at 529-30. The Court emphasized that: The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested.... [T]he Constitution has never been regarded as denying to Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply. But we said that the constant recognition of the necessity and validity of such provisions, and the wide range of administrative authority which has been developed by means of them, cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be maintained. Id. Interestingly, the Schechter Court's recitation of the nondelegation doctrine is not substantially different than the Court's more recent recitation of the doctrine in Mistretta or Whitman; the primary difference is the outcome. Compare id., with Mistretta v. United States, 488 U. S. 361, 371-75 (1989) (noting that Congress may not delegate its legislative authority to a coordinate branch, but may "obtain[] the assistance" of other branches), and Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 472-74 (noting that Congress may delegate certain authority so long as it provides an "intelligible principle" as a guidepost for implementation).
85. See Schechter, 295 U. S. at 541-42; Panama Refining, 293 U. S. at 430.
86. W. Coast Hotel Co. v. Parrish, 300 U. S. 379, 390 (1937) (breaking with the Court's Lochner-era jurisprudence and giving "fresh consideration" to questions previously considered due to a change in "economic conditions").
87. See Sandra B. Zellmer, The Devil, the Details, and the Dawn of the 21st Century Administrative State: Beyond the New Deal, 32 ARIZ. ST. L. J. 941, 942-43 (2000) (noting that toward the end of the New Deal Era, "[a]s the regulatory state grew, fueled by increasingly complex societal needs and technological advances... the nondelegation doctrine receded into the dustbin of Lochner Era jurisprudence"). The nondelegation doctrine's decline has been somewhat disguised by the Court's rote recitation, at least in modern cases, of the intelligible principle requirement articulated by Chief Justice Taft in Hampton, while ultimately reaching what has become a foregone conclusion-"that the delegation meets the standard." Ronald J. Krotoszynski, Jr., Reconsidering the Nondelegation Doctrine: Universal Service, the Power to Tax, and the Ratification Doctrine, 80 IND. L. J. 239, 261-65 (2005);
88. see also Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267, 428-29 (1998);
89. David Schoenbrod, The Delegation Doctrine: Could the Court Give it Substance?, 83 MICH. L. REV. 1223, 1224-25 (1985).
90. Interestingly, the Court in its decisions immediately following Panama Refining and Schechter did not even mention the nondelegation doctrine's roots in the Constitution's separation of powers requirement. See, e.g., United States v. Rock Royal Co-op., 307 U. S. 533, 574-75 (1939);
91. Mulford v. Smith, 307 U. S. 38, 48-49 (1939). The Court re-acknowledged the doctrine's constitutional roots as early as 1944. See Yakus v. United States, 321 U. S. 414, 425-26 (1944).
92. Am. Power & Light Co. v. SEC, 329 U. S. 90, 105 (1946).
93. Yakus, 321 U. S. at 426.
94. See Jeffrey A. Wertkin, Reintroducing Compromise to the Nondelegation Doctrine, 90 GEO. L. J. 1055, 1067 (2002) ("Since Panama Refining and A. L. A. Schechter Poultry Corp. v. United States, the Supreme Court has not struck down a single statute for violating the intelligible principles standard.... [in] Yakus v. United States, the first post New-Deal nondelegation case considered by the Supreme Court[,]... [t]he Court weakly attempted to distinguish Yakus from Schechter, but the real difference between the cases was not factual but rather a decision to devalue nondelegation principles.... This practice of... devaluing the... nondelegation principles at stake[] continues to pervade modern nondelegation jurisprudence." (footnotes omitted)).
95. Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 472 (2001).
96. See Touby v. United States, 500 U. S. 160, 166-67 (1991) (upholding delegation authorizing the Attorney General to designate a drug as a controlled substance for purposes of criminal drug enforcement if doing so was "necessary to avoid an imminent hazard to the public safety" in light of three factors given by Congress);
97. United States v. Mazurie, 419 U. S. 544, 545-46 (1975) (upholding delegation to an Indian tribal council the authority to regulate the introduction of "spirituous" beverages onto an Indian reservation);
98. Am. Power & Light, 329 U. S. at 104-05 (upholding section 11 (b) (2) of the Public Utility Holding Company Act giving the SEC authority to modify the structure of holding company systems to ensure they are not "unduly or unnecessarily complicated" and do not "unfairly or inequitably distribute voting power among security holders");
99. Yakus, 321 U. S. at 420 (upholding an Emergency Price Control Act delegation to the price administrator of the authority to fix maximum prices of commodities which "in his judgment will be generally fair and equitable");
100. Fed. Power Comm'n v. Hope Natural Gas Co., 320 U. S. 591, 593, 604-05 (1944) (upholding delegation to the Federal Power Commission under the Natural Gas Act to set "just and reasonable" gas rates);
101. Nat'l Broad. Co. v. United States, 319 U. S. 190, 225-26 (1943) (upholding delegation authorizing the Federal Communications Commission to promulgate radio regulations in the "public interest").
102. Nat'l Broad. Co., 319 U. S. at 225-26.
103. See id. at 227 (upholding the licensing system established by Congress in the Communications Act of 1934);
104. N. Y. Cent. Secs. Corp. v. United States, 287 U. S. 12, 24-25 (1932) (upholding section 5(2) of the Interstate Commerce Act).
105. Yakus, 321 U. S. at 420, 426 (upholding the Emergency Price Control Act).
106. Whitman, 531 U. S. at 475-76.
107. Mistretta v. United States, 488 U. S. 361, 371 (1989).
108. Id. at 379 (quoting United States v. Chambless, 680 F. Supp. 793, 796 (E. D. La. 1988)). The Court's Mistretta decision highlighted the synergistic effect of the growth in size and complexity of the U. S. government and the Court's deference to Congress, Id. at 379 ("Developing proportionate penalties for hundreds of different crimes by a virtually limitless array of offenders is precisely the sort of intricate, labor-intensive task for which delegation to an expert body is especially appropriate.").
109. Whitman, 531 U. S. at 474-75 (quoting Mistretta, 488 U. S. at 416 (Scalia, J., dissenting)).
110. See id. at 474; see also supra notes 23-27 and accompanying text.
111. See Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U. S. 607, 682-86 (1980) (Rehnquist, J., concurring).
112. See, e.g., Loving v. United States, 517 U. S. 748, 772 (1996);
113. see also Whitman, 531 U. S. at 475.
114. See, e.g., Yakus v. United States, 321 U. S. 414, 426 (1944).
115. Whitman, 531 U. S. at 475; see also Loving, 517 U. S. at 772-73;
116. United States v. Mazurie, 419 U. S. 544, 556-57 (1975).
117. Whitman, 531 U. S. at 472-73 ("We have never suggested that an agency can cure an unlawful delegation of legislative power by adopting in its discretion a limiting construction of the statute[;]" therefore, "[w]hether the statute delegates legislative power is a question for the courts, and an agency's voluntary self-denial has no bearing upon the answer.").
118. Id. at 475 ("[T]he degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred."). Indeed, "[w]hile Congress need not provide any direction to the EPA regarding the manner in which it is to define 'country elevators, 'which are to be exempt from new-stationary-source regulations governing grain elevators, it must provide substantial guidance on setting air standards that affect the entire national economy." Id. (citation omitted). Likewise, Congress must provide more guidance when delegating the authority to waive "all legal requirements," REAL ID Act of 2005, Pub. L. No. 109-13, Div. B § 102 (c) (1), 119 Stat. 231, 306 (to be codified at 8 U. S. C. § 1103 (c)), than when delegating the authority to regulate radio waves, Nat'l Broad. Co. v. United States, 319 U. S. 190, 214-15, 226 (1943), or air quality standards, Whitman, 531 U. S. at 475, for example.
119. That said, Schechter is the only case in which the Court relied on the inordinate scope of delegated power to invalidate the delegation, as opposed to more recent cases in which the Court noted the connection between the scope of the power delegated and the intelligibility of the principle, but upheld the delegation in question either because the principle was sufficiently intelligible even in light of the broad delegation, see id. at 475-76, or because the delegate had independent authority over the subject matter, Loving, 517 U. S. at 772-73; Mazurie, 419 U. S. at 556-57.
120. Nat'l Broad. Co., 319 U. S. at214-15.
121. Fed. Power Comm'n v. Hope Natural Gas Co., 320 U. S. 591, 593, 603-04 (1944).
122. Mazurie, 419 U. S. at 553-56.
123. Mistretta v. United States, 488 U. S. 361, 371 (1989).
124. Whitman, 531 U. S. at 475.
125. See, e.g., Touby v. United States, 500 U. S. 160, 162-63, 167 (1991) (upholding section 201 (h) of the Controlled Substances Act, which authorizes the U. S. Attorney General to temporarily designate a drug as a controlled substance for purposes of criminal drug enforcement, but only after giving notice to the Secretary of Health and Human Services).
126. Loving v. United States, 517 U. S. 748, 772 (1996) ("Had the delegations here called for the exercise of judgment or discretion that lies beyond the traditional authority of the President, Loving's last argument that Congress failed to provide guiding principles to the President might have more weight.");
127. Mazurie, 419 U. S. at 556-57 ("[l]t is an important aspect of this case that Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory, they are 'a separate people' possessing the 'power of regulating their internal and social relations...."' (citations omitted) (quoting United States v. Kagama, 118 U. S. 375, 381-82 (1886)).
128. Mazurie, 419 U. S. at 556-57 (citing United States v. Curtiss-Wright Exp. Corp., 299 U. S. 304, 319-22 (1936));
129. see also Loving, 517 U. S. at 772; Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring).
130. Mistretta, 488 U. S. at 373 n. 7; see also, e.g., Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U. S. 607, 646 (1980);
131. Nat'l Cable Television Ass'n v. United States, 415 U. S. 336, 342 (1974).
132. Touby, 500 U. S. at 170 (Marshall, J., concurring);
133. id. at 168-69 (majority opinion) (implying the importance of judicial review in determining the constitutionality of a congressional delegation of power by refusing to declare judicial review irrelevant to the nondelegation analysis). Justice O'Connor, writing for the majority in Touby, noted, as the Court did in Skinner, that judicial review is important because it is essential to '"ascertain whether the will of Congress has been obeyed.'" Id. at 168 (quoting Skinner v. Mid-America Pipeline Co., 490 U. S. 212, 218 (1989)).
134. See, e.g., William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593, 633 (1992).
135. Id.
136. See Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 316 (2000).
137. See Touby, 500 U. S. at 167-69; A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 533 (1935).
138. See Schechter, 295 U. S. at 532-34, 539-42 (distinguishing the Federal Trade Commission Act, the Interstate Commerce Act, and the Radio Act of 1927 on numerous grounds, one of which was the lack of judicial review).
139. Yakus v. United States, 321 U. S. 414, 426 (1944). The Court held that the fundamental question in nondelegation doctrine cases is whether the principle laid down by Congress is "sufficiently definite and precise to enable Congress, the courts and the public to ascertain whether the [delegate], in [exercising the delegated authority], has conformed to those standards." Id.
140. Lisa Schultz Bressman, Disciplining Delegation After Whitman v. American Trucking Ass'ns, 87 CORNELL L. REV. 452, 455 (2002) ("The nondelegation doctrine as it is traditionally understood requires Congress to supply an 'intelligible principle' in its statutory delegations that constrains administrative discretion and facilitates judicial review." (emphasis added)).
141. Fed. Power Comm'n v. Hope Natural Gas Co., 320 U. S. 591, 602 (1944). The Court noted that the FPC's "rate-making function... involves the making of 'pragmatic adjustments.' And when the Commission's order is challenged in the courts, the question is whether that order 'viewed in its entirety' meets the requirements of the Act." Id. (emphasis added) (citation omitted) (quoting Fed. Power Comm'n Natural Gas Pipeline Co. of Am., 315 U. S. 575, 586 (1942). Likewise, in American Power & Light v. SEC, 329 U. S. 90 (1946), the Court held that "[p]rivate rights are protected by access to the courts to test the application of the policy in the light of these legislative declarations[,]" id. at 105.
142. Touby, 500 U. S. at 168. Plaintiffs in Touby argued that the delegation in question was unconstitutional because it lacked judicial review, but the Court skillfully side-stepped the question, instead holding that judicial review did exist, even if it was delayed. Id. The Court went on to expressly note, as it did in Skinner, that judicial review is important because it is crucial to be able to "ascertain whether the will of Congress has been obeyed." Id. (internal quotation marks omitted) (quoting Skinner v. Mid-Am. Pipeline Co., 490 U. S. 212, 218 (1989)).
143. Id. at 170 (Marshall, J., concurring);
144. see also Patrick M. Garry, The Unannounced Revolution: How the Court has Indirectly Effected a Shift in the Separation of Powers, 57 ALA. L. REV. 689, 707 (2006). Professor Garry observed that "separation of powers is inextricably connected to judicial review," and that judicial review "preserves the separation of powers [and] is justified by it." Garry, supra, at 707.
145. Marbury v. Madison, 5 U. S. (1 Cranch) 137, 177 (1803) ("It is emphatically the province of the [Court] to say what the law is.").
146. Mistretta v. United States, 488 U. S. 361, 373 n. 7 (1989).
147. See Touby, 500 U. S. at 171 (Marshall, J., concurring) (noting that judicial review of legislative delegation is necessary to ensure "that the exercise of such power remains within the statutory bounds").
148. REAL ID Act of 2005, Pub. L. No. 109-13, Div. B § 102 (c) (1), 119 Stat. 231, 306 (to be codified at 8 U. S. C. § 1103 (c)). Interestingly, the REAL ID Act was enacted as part of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief of 2005. See generally id. Div. B, 119 Stat, at 302-23. The REAL ID Act, which contained several extremely controversial provisions, was largely a pet project of House Republicans who attached it to the emergency supplemental appropriation legislation because they knew it was a must-pass bill. See 151 CONG. REC. S3965-66 (2005) (daily ed. Apr. 20, 2005) (statement of Sen. Cochran) (discussing how the Senate has made "good progress" on the Act thus far and urging cooperation to quickly pass the bill). Republicans and Democrats alike opposed REAL ID, for varying reasons. See 151 CONG. REC. S3597 (daily ed. Apr. 13, 2005) (sponsored by Sen. Feinstein, co-sponsored by Sens. Alexander, Boxer, Brownback, Clinton, Leahy, Lieberman) (expressing the sense of the Senate that the conference committee should not include the REAL ID Act in the emergency supplemental);
149. CONG. REC. S3965-66 (daily ed. Apr. 20, 2005) (statement of Sen. Cochran);
150. see also H. R. REP. NO. 109-72, at 187-88 (2005) (Conf. Rep.) (noting that Sens. Feinstein, Mikulski, Leahy, Harkin, and Reid agreed to the Conference Report "with exception for REAL ID").
151. REAL ID Act § 102 (c) (1). The DHS Secretary's waiver authority in section 102 (c) is not entirely new. Section 102 (c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), passed in 1996, provided: "The provisions of the Endangered Species Act of 1973 and the National Environmental Policy Act of 1969 are waived to the extent the Attorney General determines necessary to ensure expeditious construction of the barriers and roads under this section." Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, § 102 (c), 110 Stat. 3009-546, 3009-555 (1996) (prior to the REAL ID Act amendment in 2005). However, IIRIRA waiver authority is very different, and far more limited, than the REAL ID Act authority. Under the IIRIRA waiver authority, Congress makes the public policy decision to waive the Endangered Species Act, and simply conditions the waiver on the Attorney General's finding that such waiver is "necessary to ensure expeditious construction of the barriers and roads" along the U. S.-Mexico border. See id. However, under REAL ID Act section 102 (c) the DHS Secretary is given complete discretion to determine what laws should be waived as well as to determine whether the condition of necessity has been met. See REAL ID Act of 2005 § 102 (c) (1).
152. Id. § 102 (c) (2) (A).
153. Id. § 102 (c) (2) (A) (l).
154. Id. § 102 (c) (2) (B).
155. Id. § 102 (c) (2) (C).
156. Plaintiffs' Opposition to Defendants' Renewed Motion to Dismiss at 26-33, Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119 (D. D. C. 2007) (No. 07-1801), cert. denied, 128 S. Ct. 2962 (2008).
157. Plaintiffs challenged the act on other theories as well. Id. at 14-25. In fact, Robert Dreher, Vice President for Conservation Law at Defenders of Wildlife, indicated that its nondelegation doctrine argument was not its strongest. See Marcia Coyle, Barrier Triggers a Legal Division: Border Fence Raises Issues of Authority, 30:24 NAT'L L. J. Feb. 25, 2008, at 1, 13. However, Professor Peter Shane, a separation of powers expert at Ohio State University Michael E. Moritz College of Law, noted that '"[section 102 (c)] would be the poster statute for Congress going too far.'" Id.
158. Defenders of Wildlife, 527 F. Supp. 2d at 128-29. Notably missing from the court's decision was any mention of the impact of section 102 (c) 's jurisdiction-stripping provision, because the plaintiffs failed to raise the issue. See First Amended Complaint for Declaratory and Injunctive Relief at 2, 9, Defenders of Wildlife, 527 F. Supp. 2d 119 (No. 07-1801), cert. denied, 128 S. Ct. 2962 (2008);
159. see also Brief for the Respondent in Opposition at 15, Defenders of Wildlife v. Chertoff, 128 S. Ct. 2962 (2008) (No. 07-1180) (noting that "[b]efore this Court, however, petitioners and the amici supporting them take a new, more absolute, position that was neither pressed nor passed upon in the court below, namely that 'a delegation of authority can satisfy the intelligible principle standard only if the Executive's actions are subject to judicial review....'" (internal quotation marks omitted) (quoting Petition for a Writ of Certiorari at 3, Defenders of Wildlife, 128 S. Ct. 2962 (No. 07-1180))).
160. Defenders of Wildlife, 527 F. Supp. 2d at 128-29.
161. Brief for the Respondent in Opposition, supra note 114, at 16.
162. Defenders of Wildlife, 527 F. Supp. 2d at 128. Moreover, the court continued: "Applying [Supreme Court] precedents, the [c]ourt concludes that it lacks the power to invalidate the waiver provision merely because of the unlimited number of statutes that could potentially be encompassed by the Secretary's exercise of his waiver power." Id. at 129.
163. Id. at 127. Specifically, the court held that "[t]he 'general policy' is 'clearly delineated'[:] to expeditiously 'install additional physical barriers and roads... to deter illegal crossings in areas of high illegal entry.'" Id. (quoting Mistretta v. United States, 488 U. S. 361, 372-73 (1988);
164. U. S. C. A. § 1103 note (West Supp. 2008)). The Court also specifically concluded that "the 'boundaries' of the delegated authority are clearly defined by Congress's requirement that the Secretary may waive only those laws that he determines 'necessary to ensure expeditious construction. '" Id. (Mistretta, 488 U. S. at 372-73;
165. 8 U. S. C. A. § 1103 note).
166. Id. at 129 (quoting Sierra Club v. Gonzales, NO. 04CV0272-LAB (JMA), 2005 U. S. Dist. LEXIS 44244, at *17 (S. D. Cal. Dec. 12, 2005)). The court ultimately concluded: In sum, given the Supreme Court's ready acceptance of the "necessity" standard as an adequate "intelligible principle" to guide a delegation of legislative authority to the Executive Branch, as well as the Executive's independent constitutional authority in the areas of foreign affairs and immigration control, the Court is constrained to reject plaintiffs' claim that the waiver provision of the REAL ID Act is an unconstitutional delegation. Id.
167. Defenders of Wildlife v. Chertoff, 128 S. Ct. 2962 (2008).
168. See Sierra Club v. Gonzales, NO. 04CV0272-LAB (JMA), 2005 U. S. Dist. LEXIS 44244, at *4, *39-40 (S. D. Cal. Dec. 12, 2005). Plaintiffs are also not the last to unsuccessfully challenge section 102 (c) of the REAL ID Act under the nondelegation doctrine. See Save Our Heritage v. Gonzales, 533 F. Supp. 2d 58, 63 (D. D. C. 2008).
169. See County of El Paso v. Chertoff, No. 08-0196, 2008 WL 4372693, *4 (W. D. Tex. June 2, 2008);
170. Complaint for Injunctive and Declaratory Relief, supra note 8, at 3.
171. Compare Petition for a Writ of Certiorari at 2-3, Defenders of Wildlife, 128 S. Ct. 2962 (No. 07-1180) (arguing that section 102 (c) is an unconstitutional delegation of power), with Brief for the Respondent in Opposition, supra note 114, at 11-12 (stressing that section 102 (c) meets the constitutional standard for delegation).
172. This is not to say that the uniqueness of the Secretary's waiver authority is not debated. See Plaintiffs' Lodged Surreply to Defendants' Renewed Motion to Dismiss at 3-4, Defenders of Wildlife, 527 F. Supp. 2d 119 (No. 07-1801) [hereinafter Plaintiffs' Lodged Surreply]. Indeed, Congress has delegated limited waiver authority in the past. However, the scope of section 102 (c) of the REAL ID Act is far broader than any prior delegation.
173. See STEPHEN R. VIÑA & TODD TATELMAN, CONGRESSIONAL RESEARCH SERVICE MEMORANDUM ON SEC. 102 OF H. R. 418, WAIVER OF LAWS NECESSARY FOR IMPROVEMENT OF BARRIERS AT BORDERS 2-4 (2005).
174. Although H. R. 418 was never enacted, the waiver provision is substantially the same as that which passed in section 102 (c) of the REAL ID Act.
175. See Plaintiffs' Lodged Surreply, supra, at 3-4. Compare H. R. 418, 109th Cong. § 102 (2005), with REAL ID Act of 2005, Pub. L. No. 109-13, Div. B § 102 (c) (1), 119 Stat. 231, 306 (to be codified at 8 U. S. C. § 1103 (c)).
176. See VIÑA & TATELMAN, supra note 124, at 2-4; Plaintiffs' Lodged Surreply, supra note 124, at 3-4 (asserting that the section 102 (c) waiver authority is "sui generis").
177. See VIÑA & TATELMAN, supra note 124, at 2-4.
178. See Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 475 (2001);
179. Loving v. United States, 517 U. S. 748, 772 (1996) ("[T]he question to be asked is not whether there was any explicit principle telling the President how to select aggravating factors [for capital crimes], but whether any such guidance was needed, given the nature of the delegation and the officer who is to exercise the delegated authority.").
180. Whitman, 531 U. S. at 475.
181. 527 F. Supp. 2d at 129. The court held that "there is no... principled basis upon which a court may strike down an otherwise permissible delegation simply because of its broad scope." Id. at 128. This statement begs the question because, in light of Whitman, the broad scope of a delegation is itself a factor in determining whether the delegation is "permissible." Defenders of Wildlife, 527 F. Supp. 2d at 128; see also Whitman, 531 U. S. at 475; A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 541-42 (1935).
182. See, e.g., Loving, 517 U. S. at 772.
183. See, e.g., id. at 772-73; United States v. Mazurie, 419 U. S. 544, 556-57 (1975).
184. E.g., Consolidated Omnibus Budget Reconciliation Act of 1985, Pub. L. 99-272, § 7005, 100 Stat. 82, 140 (1986) (Congress delegated to the Secretary of Transportation the authority to establish natural gas pipeline safety fees. The Supreme Court upheld this delegation in Skinner v. Mid-America Pipeline Co., 490 U. S. 212, 214 (1989).);
185. Clean Air Amendments of 1970, Pub. L. No. 91-604, § 109 (b) (1), 84 Stat. 1676, 1680 (1970) (amending the Clean Air Act) (Congress delegated to the EPA Administrator authority to regulate national ambient air quality standards. The Supreme Court upheld this delegation in Whitman v. American Tracking Ass 'ns, 531 U. S. 457, 472 (2001).);
186. Emergency Price Control Act of 1942, ch. 26, §§ 2, 201, 56 Stat. 23, 24-25, 29, as amended by 56 Stat. 765 (Congress delgated to the Price Administrator the authority to regulate commodity prices. The Supreme Court upheld this delegation in Yakus v. United States, 321 U. S. 414, 418-19, 426 (1944).);
187. Public Utility Holding Company Act of 1935, ch. § 11 (b) (2), 49 Stat. 803, 820 (Congress delegated to the SEC the authority to regulate public utility holding company structures. The Supreme Court upheld this delegation in American Power & Light Co. v. SEC, 329 U. S. 90, 95, 104 (1946).);
188. Communications Act of 1934, ch. 652, §§ 1, 4-5, 48 Stat. 1064, 1064, 1067-69 (Congress delegated to the Federal Communications Commission (FCC) the power to regulate radio. Again, this delegation was upheld by the Supreme Court in National Broadcasting Co. v. United States, 319 U. S. 190, 214-15, 225-26 (1943).).
189. See infra note 140.
190. Compare REAL ID Act of 2005, Pub. L. No. 109-13, Div. B § 102 (c) (1), 119 Stat. 231, 306 (to be codified at 8 U. S. C. § 1103 (c)), with supra note 132.
191. Even though the district court rejected plaintiffs' argument that the authority to waive was tantamount to the power to repeal, Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119
192. 126 (D. D. C. 2007), cert. denied, 128 S. Ct. 2962 (2008), the fact that the waiver alters the scope and effect of the statutes waived is both indisputable and relevant for determining the scope of the power delegated, see infra note 138 (supporting the relevance of the waiver's scope).
193. See VIÑA & TATELMAN, supra note 124, at 2-4.
194. H. R. REP. NO. 109-72, at 171 (2005) (Conf. Rep.) ("[T]he provision clarifies the intent of the conference report by substituting a reference to waiver of 'all legal requirements' for the prior reference to waiver of 'all laws', clarifying Congress' intent that the Secretary's discretionary waiver authority extends to any local, state or federal statute, regulation, or administrative order that could impede expeditious construction of border security infrastructure.");
195. see also, e.g., Determination Pursuant to section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 73 Fed. Reg. 18, 293 (Apr. 3, 2008).
196. REAL ID Act § 102 (c). These examples were inspired by a group of law professors who concocted a number of creative, yet plausible, scenarios in their brief as amici curiae in Defenders of Wildlife v. Chertoff. They wrote:
197. To date, the Secretary has seen fit to waive laws protecting the environment, public health, freedom of religious exercise and historic resources. But with no more than the unsupported assertion of "necessity" that [the Secretary] has invoked to waive those laws, the Secretary also may waive any other law he [or she] desires. [The Secretary] is equally free to waive the requirements of the Fair Labor Relations Act to halt a strike, or the provisions of the Occupational Safety and Health Act to force workers to endure unsafe working conditions, or the state speed limits in California, New Mexico, Arizona and Texas to race equipment and materials to construction sites. Section 102 (c) gives the Secretary the power to waive treaties with Mexico governing the location of the border, management of the border zone, and movement of water, goods and services across the border so long as [the Secretary] deems it, in his sole and unreviewable discretion, "necessary." Indeed, under Section 102 (c) the Secretary could waive the immigration laws and regulations, hire illegal aliens, and pay them less than minimum wage if [the Secretary] deems it necessary to build the fence. Brief of Amici Curiae William D. Araiza and Other Constitutional and Administrative Law Professors Listed Herein In Support of Petitioners at 11, Defenders of Wildlife v. Chertoff, 128 S. Ct. 2962 (2008) (No. 07-1180) [hereinafter Brief of Amici Curiae].
198. Defendants, in response, argued: "The waiver at issue in this case also fails to present anything remotely resembling the parade of horribles conjured by the amici law professors. To date, the waivers issued by the Secretary have focused on statutes that have implications for land use." Brief for the Respondent in Opposition, supra note 114, at 11 n. 5 (citation omitted). However, the Secretary's decision to exercise his authority to waive only laws pertaining to land use is irrelevant because, under Whitman, "[w]hether the statute delegates legislative power is a question for the courts, and an agency's voluntary self-denial has no bearing upon the answer." Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 473 (2001).
199. See Loving v. United States, 517 U. S. 748, 773-74 (1996) (upholding delegation of authority to the President to prescribe aggravating factors for military capital punishment cases);
200. Touby v. United States, 500 U. S. 160, 166-67 (1991) (upholding delegation authorizing the U. S. Attorney General to temporarily designate a drug as a controlled substance for purposes of criminal drug enforcement upon notice to the Secretary of Health and Human Services);
201. Mistretta v. United States, 488 U. S. 361, 370, 374 (1989) (upholding establishment of the U. S. Sentencing Commission, which promulgates sentencing guidelines for all federal crimes).
202. See Loving, 517 U. S. at 773-74; Mistretta, 488 U. S. at 371. This power is arguably the most far-reaching authority delegated by Congress, at least in terms of its potential infringement on personal liberty, which is an essential consideration given the nondelegation doctrine's purpose to protect individual liberty by maintaining the separation of powers. See Clinton v. City of New York, 524 U. S. 417, 450-51 (1998) (Kennedy, J., concurring);
203. Mistretta, 488 U. S. at 371-72 (1989);
204. THE FEDERALIST NO. 47 (James Madison), supra note 17, at 249; THE FEDERALIST NO. 48 (James Madison), supra note 17, at 256.
205. Andrea C. Sancho, Environmental Concerns Created by Current United States Border Policy: Challenging the Extreme Waiver Authority Granted to the Secretary of the Department of Homeland Security Under the Real ID Act of 2005, 16 SE. ENVTL. L. J. 421, 445 (2008) ("[T]he breadth and scope of power delegated to the Secretary under section 102 (c) of the REAL ID [Act] is unprecedented and fails to provide sufficient boundaries defining the limits of delegated authority. There is something innately wrong and even undemocratic in giving the head of an agency the sole discretion to waive any legal requirements that he or she alone deems necessary to ensure the 'expeditious construction' of infrastructure at the Border.").
206. Loving, 517 U. S. at 773-74.
207. Mistretta, 488 U. S. at 370, 374.
208. REAL ID Act of 2005, Pub. L. No. 109-13, Div. B § 102 (c), 119 Stat. 231, 306 (to be codified at 8 U. S. C. § 1103 (c)). Moreover, the Loving Court rested its decision to uphold the delegation on the President's power as Commander-in-Chief, and not solely on intelligible principle grounds. Loving, 517 U. S. at 772. The Court did not entertain whether the delegation would have been valid absent the President's inherent authority. Id. Mistretta is further distinguishable from Defenders of Wildlife v. Chertoff because in the Sentencing Reform Act of 1984, which established the commission, Congress gave "detailed guidance to the Commission," whereas section 102 (c) of the REAL ID Act provides very little guidance. Compare Mistretta, 488 U. S. at 362, 376, with REAL ID Act of 2005 § 102 (c) (1).
209. Loving provides express precedent for considering the delegate's scope of authority. See Loving, 517 U. S. at 772 (upholding a delegation to the President of the authority to prescribe aggravating factors for military capital punishment cases based, in part, on the President's inherent constitutional authority as Commander-in-Chief);
210. see also supra note 91.
211. See, e.g., Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 475 (2001) (upholding the delegation to the EPA to set air quality standards);
212. see also supra Part I. D.2.
213. Touby v. United States, 500 U. S. 160, 166-67 (1991) (upholding section 201 (h) of the Controlled Substances Act, authorizing the U. S. Attorney General to temporarily designate a drug as a controlled substance for purposes of criminal drug enforcement, but only after giving notice to the Secretary of Health and Human Services).
214. See infra note 157.
215. Consolidated Appropriations Act of 2008, Pub. L. No. 110-161, § 564 (a) (2) (B) (ii) (c) (i), 121 Stat. 1844, 2090 (2007) (to be codified at 8 U. S. C. § 1103 (b)).
216. REAL ID Act of 2005, Pub. L. No. 109-13, Div. B § 102 (c) (1), 119 Stat. 231, 306 ((to be codified at 8 U. S. C. § 1103 (c));
217. see Press Release, Dep't of Homeland Sec., Remarks by Homeland Sec. Sec'y Michael Chertoff and Attorney Gen. Mukasey at a Briefing on Immigration Enforcement and Border Security Efforts (Feb. 22, 2008), http://www.dhs.gov/xnews/releases/pr-1203722713615.shtm.
218. Randal C. Archibold, Government Issues Waiver for Fencing Along Border, N. Y. TIMES, Apr. 2, 2008, at A18.
219. See Homeland Security Act of 2002, 6 U. S. C. §§ 111 (b) (1), 112 (a) (l) - (2) (Supp. V 2005).
220. See infra note 157.
221. Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119, 129 (D. D. C. 2007), cert. denied, 128 S. Ct. 2962 (2008).
222. Id.; see also Mathews v. Diaz, 426 U. S. 67, 81 (1976) ("For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government. Since decisions in these matters may implicate our relations with foreign powers, and since a wide variety of classifications must be defined in the light of changing political and economic circumstances, such decisions are frequently of a character more appropriate to either the Legislature or the Executive than to the Judiciary.");
223. United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 319-22 (1936) ("The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.") (citations omitted).
224. See supra Part I. E.
225. See Homeland Security Act of 2002, 6 U. S. C. § 112 (a) (l) - (2) (providing that the DHS Secretary "is the head of the Department and shall have direction, authority, and control over it");
226. id. § 112 (a) (3) - (b) (2) (providing that "[a]ll functions of all officers, employees, and organizational units of the Department are vested in the Secretary," in addition to "the authority to make contracts, grants, and cooperative agreements, and to enter into agreements with other executive agencies, as may be necessary and proper to carry out the Secretary's responsibilities," which the Secretary may delegate, along with "any of the Secretary's functions[,] to any officer, employee, or organizational unit of the Department").
227. Because every DHS function is vested in the Secretary, the names of the relevant titles of the Homeland Security Act sketch a rough outline of the Secretary's scope of authority. Title II is "Information Analysis and Infrastructure Protection," title III is "Science and Technology in Support of Homeland Security," title IV is "Directorate of Border and Transportation Security," and title V is "National Emergency Management." Id. § 1 et seq. Clearly, the DHS Secretary has extremely broad power over issues with national security implications. However, his general statutory authority, and his attendant expertise, is far narrower than the authority to "waive all legal requirements" that impede construction of U. S.-Mexico border infrastructure. REAL ID Act of 2005, Pub. L. No. 109-13, Div. B § 102 (c) (1), 119 Stat. 231, 306 (to be codified at 8 U. S. C. § 1103 (c)). Moreover, it is salient to note that under § 112 of the Homeland Security Act, the Secretary may delegate any of his authority "to any officer, employee, or organizational unit of the Department," including his unprecedented section 102 (c) waiver authority. Homeland Security Act of 2002, 6 U. S. C. § 112 (b) (1).
228. Cf. Mistretta v. United States, 488 U. S. 361, 419-20 (1989) (Scalia, J., dissenting) ("[A] pure delegation of legislative power is precisely what we have [in the present case]. It is irrelevant whether the standards are adequate, because they are not standards related to the exercise of executive or judicial powers; they are, plainly and simply, standards for further legislation. ").
229. Id. at 372 (majority opinion).
230. Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 475 (2001).
231. REAL ID Act of 2005 § 102 (c) (1) (emphasis added).
232. Yakus v. United States, 321 U. S. 414, 426 (1944).
233. Whitman, 531 U. S. at 475.
234. Brief for the Respondent in Opposition, supra note 114, at 16. 165. Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119, 129 (D. D. C. 2007), cert. denied, 128 S. Ct. 2962 (2008). 166. Id. 167. Whitman, 531 U. S. at 475. In addition to the express language in Whitman that "the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred," id., the Court, on more than one occasion, explicitly chose not to foreclose the possibility that a heightened intelligible principle standard may apply to a section 102 (c) -like delegation, which is exceptionally broad, directly affects individual liberty, and provides the delegate power far beyond his independent authority, see Loving v. United States, 517 U. S. 748, 772 (1996) ("Had the delegations here called for the exercise of judgment or discretion that lies beyond the traditional authority of the President, Loving's last argument that Congress failed to provide guiding principles to the President might have more weight.");
235. Touby v. United States, 500 U. S. 160, 165-66 (1991) (expressly leaving open the question of whether "something more than an 'intelligible principle' is required when Congress authorizes another Branch to promulgate regulations that contemplate criminal sanctions" because such "regulations... pose a heightened risk to individual liberty").
236. The Supreme Court's "cases are not entirely clear as to whether [Congress must provide] more specific guidance" when delegating authority of this sort. Touby, 500 U. S. at 166;
237. see also A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 541-42 (1935) ("In view of the scope of that broad declaration, and of the nature of the few restrictions that are imposed, the discretion of the President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country, is virtually unfettered. We think that the code-making authority thus conferred is an unconstitutional delegation of legislative power.").
238. See Whitman, 531 U. S. at 475.
239. Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U. S. 607, 686-87 (1980) (Rehnquist, J., concurring);
240. see also Am. Textile Mfrs. Inst. v. Donovan, 452 U. S. 490, 543 (1981) (Rehnquist, J., dissenting).
241. Mistretta v. United States, 488 U. S. 361, 371 (1989).
242. Indus. Union Dep't, 448 U. S. at 686 (Rehnquist, J., concurring).
243. See infra notes 175-83 and accompanying text.
244. Whitman, 531 U. S. at 474 (quoting Mistretta, 448 U. S. at 416 (Scalia, J., dissenting)).
245. REAL ID Act of 2005, Pub. L. No. 109-13, Div. B § 102 (c) (1), 119 Stat. 231, 306 (to be codified at 8 U. S. C. § 1103 (c)).
246. Mistretta, 488 U. S. at 374.
247. Id.
248. Loving v. United States, 517 U. S. 748, 772 (1996) (parenthetically citing Mistretta). In the Sentencing Reform Act of 1984, Congress specifically charged the Commission to pursue three goals and four purposes of sentencing, and "prescribed the specific tool-the guidelines system-for the Commission to use in regulating sentencing." Mistretta, 488 U. S. at 374. The guidelines system required the Commission to create categories of offenses and categories of defendants to be used in formulating base-line sentences. Sentencing Reform Act of 1984, Pub. L. 98-473, § 994 (c) - (d), 98 Stat. 1837, 2020. In addition, Congress provided seven factors to guide the Commission in creating the categories of offenses, id. § 994 (c), and eleven factors for establishing the categories of defendants, id. § 994 (d).
249. Compare REAL ID Act § 102 (c) (1), with Sentencing Reform Act of 1984 § 994 (c) - (d). See also Touby v. United States, 500 U. S. 160, 167 (1991) (upholding delegation authorizing U. S. Attorney General to temporarily designate a drug as a controlled substance for purposes of criminal drug enforcement where Congress required the Attorney General to consider (1) "the drug's 'history and current pattern of abuse'"; (2) '"[t]he scope, duration, and significance of abuse'"; and (3) '"what, if any, risk there is to the public health'" in order to determine whether the designation was "necessary to avoid an imminent hazard to the public safety." (citations omitted)).
250. Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 474 (2001).
251. Clean Air Act, Pub. L. No. 91-604, § 109 (b) (l) - (2), 84 Stat. 1679, 1680 (1970) (codified as amended at 42 U. S. C. § 7409 (b) (l) - (2) (2000)).
252. See Whitman, 531 U. S. at 474-75.
253. See supra Part II. A.
254. Compare REAL ID Act § 102 (c) (1), with Clean Air Act § 109 (b) (1), 42 U. S. C. § 7409 (b) (1) (2000). In Whitman, Justice Scalia specifically defined, under the Clean Air Act, "requisite" to mean "sufficient, but not more than necessary." Whitman, 531 U. S. at 473 (citations omitted). And the EPA is not left to its "sole discretion" in making the air quality standards, rather the agency is required to base its decision on "published air quality criteria that reflects the latest scientific knowledge." Id.
255. Yakus v. United States, 321 U. S. 414, 426 (1944).
256. REAL ID Act § 102 (c) (2) (A).
257. See Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U. S. 607, 686 (1980) (Rehnquist, J., concurring). Then-Associate Justice Rehnquist noted that one of the "important functions" of the nondelegation doctrine is to "ensure[] that courts charged with reviewing the exercise of delegated legislative discretion will be able to test that exercise against ascertainable standards." Id. at 685-86 (citing Arizona v. California, 373 U. S. 546, 626 (1963) (Harlan, J., dissenting in part)).
258. See, e.g., Yakus, 321 U. S. at 426; A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 529-30 (1935);
259. see also Indus. Union Dep't, 448 U. S. at 686 (Rehnquist, J., concurring).
260. See supra notes 92-96 and accompanying text;
261. see also Mistretta v. United States, 488 U. S. 361, 373 n. 7 (1989);
262. Indus. Union Dep't, 448 U. S. at 646 (majority opinion);
263. Nat'l Cable Television Ass'n v. United States, 415 U. S. 336, 342 (1974).
264. REAL ID Act § 102 (c) (2) (A).
265. See Sunstein, supra note 96, at 316; see also supra Part I. D.3.
266. For example, the jurisdiction-stripping provision would foreclose a challenge to the DHS Secretary's decision to waive the Fair Labor Standards Act and force workers to endure unsafe working conditions, see Brief of Amici Curiae, supra note 138, at 11, or his decision regarding the placement of the fence through the middle of a university campus, see Ralph Blumenthal, Some Texans Fear Border Fence Will Sever Routines, N. Y. TIMES, June 20, 2007, at A17, or around a border resident's house, see Alicia A. Caldwell, Don't Fence Me In: Federal Fence Snarls Homeowners' Rights in Sleepy Texas Towns, CHI. SUN TIMES, Nov. 18, 2007, at El.
267. See THE FEDERALIST NO. 47 (James Madison), supra note 17, at 249; THE FEDERALIST NO. 48 (James Madison), supra note 17, at 256.
268. See supra Part I. D.3.
269. REAL ID Act § 102 (c) (2) (A).
270. See Caldwell, supra note 191.
271. Am. Power & Light Co. v. SEC, 329 U. S. 90, 105 (1946).
272. Justice O'Connor's majority opinion in Touby, in which she bent over backward to avoid declaring judicial review irrelevant to the nondelegation doctrine analysis, see supra notes 102-03, belies the defendants' argument in Defenders of Wildlife that judicial review of the executive branch's adherence to a congressional delegation is distinct from the question of "whether an Act of Congress is constitutionally infirm because it cedes legislative authority to the Executive Branch by failing to impose sufficient restrictions[,]" Brief for the Respondent in Opposition, supra note 114, at 18. Without judicial review there is no way to challenge the exercise of delegated authority, and thus no meaningful mechanism for ensuring the agency administrator does not become a legislator. See Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U. S. 607, 686 (1980) (Rehnquist, J., concurring). Thus, far from being separate and distinct, the presence or absence of judicial review is an important aspect of whether a delegation is unconstitutional. See id.
273. 128 S. Ct. 2962 (2008).
274. Coyle, supra note 113, at 13.
275. Antonin Scalia, A Note on the Benzene Case, 4 REGULATION 25, 28 (July/Aug. 1980). Justice Scalia, while a professor at the University of Chicago Law School, wrote: "So even with all its Frankenstein-like warts, knobs, and (concededly) dangers, the unconstitutional delegation doctrine is worth hewing from the ice. The alternative appears to be continuation of the widely felt trend toward government by bureaucracy or (what is no better) government by courts." Id. Justice Scalia concluded: "So even those who do not relish the prospect of regular judicial enforcement of the unconstitutional delegation doctrine might well support the Court's making an example of one-just one-of the many enactments that appear to violate the principle. The educational effect on Congress might well be substantial." Id. Perhaps the Sentencing Reform Act of 1964, which the Court upheld in Mistretta over Justice Scalia's lone dissent, was "the one" Scalia had in mind, but section 102 (c) of the REAL ID Act conceivably could also fit the bill. See id.
276. Section 102 (c) is broader than prior delegations upheld by the Court in the scope and nature of the power delegated, and the lack of judicial review. See supra notes 132-34 and accompanying text. Because the delegation is so extreme, invalidating it under the nondelegation doctrine would not severely curtail Congress's ability to make traditional administrative delegations, with appropriately intelligible principles, in the interest of maintaining a functioning government. Rather, it would tell Congress, in no uncertain terms, that there is a limit to Congress's power to delegate, and the Court is willing and able to enforce that limit.
277. Scalia, supra note 200, at 27.
278. Id.
279. See id. at 27-28;
280. see also United States v. Grimaud, 220 U. S. 506, 517 (1911);
281. Wayman v. Southard, 23 U. S. (10 Wheat.) 1, 43 (1825) ("The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions to fill up the details.").
282. See Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 474-75 (2001);
283. see also Posner & Vermeule, supra note 27, at 1740; supra Part I. C.
284. Panama Refining Co. v. Ryan, 293 U. S. 388, 430 (1935).
285. A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 542 (1935).
286. Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U. S. 607, 686 (1980) (Rehnquist, J., concurring).
287. See supra note 52 and accompanying text; supra Part I. C.
288. See supra notes 81-82 and accompanying text.
289. Whitman, 531 U. S. at 475 (quoting Mistretta v. United States, 448 U. S. 361, 417 (1989) (Scalia, J., dissenting) (emphasis omitted)).
290. See Indus. Union Dep't, 448 U. S. at 686 (Rehnquist, J., concurring);
291. see also Gilbert Paul Carrasco, Congressional Arrogation of Power: Allen Constellation in the Galaxy of Equal Protection, 74 B. U. L. REV. 591, 629 (1994) ("Critics of the nondelegation doctrine argue that the doctrine has fallen into desuetude since 1935 because it is impossible for Congress to follow strict guidelines in all its delegations, and because a resurgence could easily provide a vehicle for judicial activism.").
292. Scalia, supra note 200, at 28.
293. Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071, 2111-13 (1990).
294. Real ID Act of 2005, Pub. L. No. 109-13, Div. B §102 (c) (2), 119 Stat. 231, 306 (to be codified at 8 U. S. C. §1103).
295. Posner & Vermeule, supra note 27, at 1723.
296. DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION 20 (1993).
297. See Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 472, 474-75 (2001).
298. Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119 (D. D. C. 2007), cert. denied, 128 S. Ct. 2962 (2008).
299. Then-Associate Justice Rehnquist, in his concurring opinion in the Benzene Case, proposes a very similar analytical framework. See Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U. S. 607, 671-88 (1980) (Rehnquist, J., concurring).
300. See supra note 137 and accompanying text.
301. See Brief of Amici Curiae, supra note 138, at 11.
302. Blumenthal, supra note 191.
303. See Caldwell, supra note 191;
304. see also Melissa del Bosque, Holes in the Wall: Homeland Security Won't Say Why the Border Wall is Bypassing the Wealthy and Politically Connected, TEX. OBSERVER, Feb. 22, 2008, at 20.
305. See David von Drehle, The Border Fence: A Texas Turf War, TIME, May 21, 2008, http://www.time.com/time/nation/article/0,8599, 1808405,00.html;
306. see also Ronald J. Krotoszynski, Jr., Reconsidering the Nondelegation Doctrine: Universal Service, the Power to Tax, and the Ratification Doctrine, 80 IND. L. J. 239, 242-43 (2005).
307. See Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 472 (2001).
308. See, e.g., id. at 474-76.
309. See, e.g., id. (comparing the power to regulate air quality standards to the power to regulate holding company structures for utilities, set commodities prices at a certain level, or regulate railroad mergers).
310. See supra Part I. D. I.
311. See supra Part I. D.2.
312. See supra Part I. D.3. The importance of judicial review will vary based upon the other factors-the scope of the power delegated and the intelligibility of the principle laid down. Thus, full-blown judicial review will not be necessary in every case. See Touby v. United States, 500 U. S. 160, 168 (1991).
313. Whitman, 531 U. S. at 487 (Thomas, J., concurring).