Federal attorneys told the Supreme Court yesterday that it doesn't need to get involved in a dispute over waivers of environmental laws for construction of barriers along the U.S.-Mexico border. A U.S. District Court for the District of Columbia judge, the attorneys argued, correctly determined that Congress had precluded the court from examining environmental groups' claims that the Department of Homeland Security had unlawfully exempted the project from the Endangered Species Act and other environmental statutes. "Petitioners do not contend that the district court's decision rejecting their constitutional challenges to [the waivers] conflicts with a decision of any other court," the Department of Justice wrote in its brief, citing a key factor — disagreement among lower benches — that might persuade the Supreme Court to review a case. "Indeed, every federal court to consider constitutional challenges to the statute has rejected them," DOJ said. The Trump administration sought to counter arguments by the Center for Biological Diversity and other challengers that the high court should agree to review the case in light of Justice Neil Gorsuch's dissenting opinion in Gundy v. United States, which said Congress should not be able to delegate major national policy decisions to the executive branch. Green groups also cited Justice Brett Kavanaugh's statement last fall that Gorsuch's dissent "may warrant further consideration" of the nondelegation doctrine. DOJ argued that the waivers, outlined in Section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act, did not violate separation of powers.
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