In Sierra Club v. Ashcroft, 2005 U.S. Dist. LEXIS 44244 (S.D. Cal. Dec. 13, 2005), a federal district court in California rejected on jurisdictional grounds a lawsuit against construction of a 14-mile border fence south of San Diego along the border with Mexico.
The Sierra Club, an environmental group, complained that portions of the fence would injure the environment in violation of federal law. But the court upheld a provision in the fence authorization that enabled the Secretary of Homeland Security to remove federal court jurisdiction by waiving application of all other federal law:
- SEC. 102. WAIVER OF LEGAL REQUIREMENTS NECESSARY FOR IMPROVEMENT OF BARRIERS AT BORDERS; FEDERAL COURT REVIEW.
- WAIVER.--(1) IN GENERAL--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 the barriers and roads under this section. Any such decision by the Secretary shall be effective upon being published in the Federal Register.
This "Waiver Legislation" withdraws jurisdiction from federal courts:
- (2) FEDERAL COURT REVIEW.---
- (A) IN GENERAL.-- The district courts of the United States shall have exclusive jurisdiction to hear all causes or claims arising from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to paragraph (1) [of Section 102(c)]. A cause of action or claim may only be brought alleging a violation of the Constitution of the United States. The court shall not have jurisdiction to hear any claim not specified in this subparagraph.
The court enforced that jurisdiction-stripping provision and dismissed the lawsuit for lack of jurisdiction. The Sierra Club vowed to appeal, but no appellate decision was reported.
- U.S.P.L. 109-13, HR 1268, Div. B -- REAL ID Act of 2005, 119 Stat 231 (May 11, 2005) (the "Waiver Legislation" or " § 102(c)").
- Section 102(c)(2) (emphasis added).