County of El Paso v. Napolitano (08-751)
Although we haven't previously mentioned this case, we have been watching the cert petition in County of El Paso for some time. It looks ripe for a summary decision from the Supreme Court. It has now been scheduled for 8 conferences, without cert having been granted or denied; which points to the probability of a summary decision without oral argument or any further briefing. In addition, construction of the border wall is ongoing, which suggests the utility of a quick decision from the Court. One factor favoring some SupCt review is that, due to a 60 day limitations period, this case is the last chance the SupCt will have to review the particular DHS waiver in question.
The issue in the case is the waiver issued by DHS Secretary Chertoff, which purports to waive basically all state and federal laws pertaining to the construction of the border wall.
There were two issues raised in the cert petition. First, the delegation to DHS purports to eliminate judicial review, except for constitutional questions. The Petitioners and amici argue that Chertoff's waiver / preemption is ambiguous and ultra vires to the statute, as well as potentially permanent in length. They want to be able to challenge it, to clarify it, etc.; and the lack of judicial review effectively prevents them from doing so. An ultra vires argument seems more statutory than constitutional; though I do wonder whether one could turn separation of powers into a constitutional claim. Ergo, the SupCt might be able to duck review of this question. (Btw, note that IIRIRA permits only DistCt review; there is no CtApp review, only potential SupCt certiorari.)
Second, the case presents issues of preemption of state laws. Notwithstanding the 10th amendment, Congress clearly can preempt state laws; but the question is how clearly Congress has to do that, and whether a general delegation to the secretary of DHS is sufficient to permit DHS to preempt state laws. There were two amicus briefs in support of cert; the brief by Eagle Pass and other border cities argued that the DHS rule was permanent in length, left border localities unclear about their laws - and noted that the wall will place some citizens on the "Mexican side," making fire and police protection more difficult.
It might be worth noting the interesting dissent in Watters v. Wachovia Bank, N.A., 127 S. Ct. 1559 (2007). In that case, Justices Stevens, Scalia, and CJ Roberts dissented in part on grounds that an agency cannot preempt state laws, that only Congress can do so. The majority in Watters expressly declined to address that issue, since holding that the statute itself precluded the state laws from having effect in the banking context. Given federalism issues and the very broad agency language (which seems to go beyond the construction of the wall to encompass maintanence of roads, something that wouldn't seem to have any expiration date), there may be reason to suspect that both wings of the Court would find DHS to have exceeded its authority here.