A Nondelegation Challenge to Trump’s Border Wall

Could an environmentalist lawsuit against President Trump’s border wall provide the Supreme Court with an opportunity to revive the nondelegation doctrine? Perhaps.

Under Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the Secretary of Homeland Security is authorized to waive other provisions of federal law if doing so would facilitate the expeditious construction of border barriers.  Specifically, Section 102(c)(1) provides:

Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of

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