Border Wall Case May Send Rare Constitutional Test to High Court

An environmental challenge to President Donald Trump’s border wall has the potential to be the vehicle for the US Supreme Court, for the first time in nearly a century, to take a hard look at Congress’ ability to delegate its powers to executive agencies.

The case centers around concern that the administration’s decision to skip environmental review of the project risks permanent damage to Arizona’s San Rafael Valley, a critical migratory corridor for several species.

The complaint’s reliance on a rarely used legal principle rooted in separation of powers could attract the attention of a Supreme Court increasingly eager to revisit a doctrine it hasn’t used to strike down a law since 1935.

Homeland Security Secretary Kristi Noem invoked the Illegal Immigration Reform and Immigrant Responsibility Act to waive 34 federal statutory requirements, a move the Center for Biological Diversity and Conservation CATalyst say violates the nondelegation doctrine because the waiver elevates the political appointee to a de facto lawmaker.

Jean Su, the Center for Biological Diversity attorney representing the groups, said the waiver is a good target for a constitutional challenge because it’s particularly expansive.

“It’s way broader than just environmental laws—it is the whole universe that she is able to mess with,” she said. “Congress has given this unelected official the ability to pick and choose law.”

The nondelegation doctrine provides that Congress can’t relinquish legislative power to federal agencies without a guiding “intelligible principle” for how to wield it.

The Supreme Court historically has been reluctant to invoke this and other constitutional doctrines. That is, until the justices overturned agency deference last year and Trump took office for the second time.

With the courts now taking a closer look at agencies’ statutory interpretations and an administration testing the bounds of executive power, the high court is positioned to sharpen its separation-of-powers jurisprudence.

Renewed Interest

DHS routinely has invoked IIRIRA waivers—added as part of the Real ID Act—for border security projects across administrations, issuing six so far this year alone.

CBD failed to get environmental review waivers overturned on nondelegation grounds in the first Trump administration, an issue the justices declined to review at the time.

But recent developments suggest they might have had a change of heart.

In June, the Supreme Court reversed a ruling that the Federal Communications Commission violated the nondelegation doctrine with its $8.6 billion Universal Service Fund, finding that Congress “sufficiently guided and constrained” the FCC. Justice Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito, dissented.

Gorsuch and Thomas, as well as Chief Justice John Roberts, previously signaled in Gundy v. United States that the court’s conservative block is willing—if not eager—to clarify the separation of powers in cases involving a sweeping power handover.

But Jonathan H. Adler, a constitutional law professor at William & Mary Law School, said the nondelegation opinions have long either interpreted statutes narrowly or relied on the major questions doctrine, which says agencies can’t decide political or economic matters without congressional authorization. When it comes to the IIRIRA regulatory review waiver, those alternate avenues may not be available, he said.

“This isn’t picking up some old statute and applying it to some new issue,” Adler said. “This is a portion of the statute that is on its face very broad and can at least be interpreted as not providing much guidance for the exercise of the agency’s discretion.”

DHS didn’t respond to a request for comment.

Andrew Arthur, resident fellow in law and policy at the Center for Immigration Studies, said Congress knew the IIRIRA amendment would apply narrowly to critical border infrastructure.

“The filing of nuisance suits simply to impede construction of this was a key concern of Congress,” he said.

Luke Wake, an attorney at the limited-government public interest group Pacific Legal Foundation, said nondelegation is an issue that both sides of the political aisle see as ripe for review.

“The court will have decide what limits there are on Congress’ ability to shirk its responsibility, whether it’s in this case or another,” he said in a statement.

Risky Move?

But environmentalists’ increasing attempts to block the Trump administration’s immigration enforcement campaign could also heighten judicial scrutiny of climate-focused executive authority.

In addition to the border wall dispute, groups are asking a federal judge in Florida to halt operation of the temporary migrant detention center dubbed “Alligator Alcatraz.” The facility sprang up in the Everglades in just one week without the notice, and groups say a review was required under the National Environmental Policy Act. DHS maintains no agency scrutiny was needed because the state is funding the facility.

Tania Galloni, the managing attorney for the Florida office of Earthjustice, said the 5,000-bed facility is “a complete disregard of what Congress has directed” for environmental conservation and ignores protections for a sensitive ecological area.

But using constitutional claims to challenge fast-paced projects could get pushback even from political allies who foresee the tactic backfiring, Adler said.

The nondelegation doctrine “doesn’t have universal appeal within the environmental community” due to fears the courts could further weaken agency-driven environmental programs Congress didn’t explicitly authorize, he said.

The White House Council on Environmental Quality is a prime example: The DC Circuit ruled last year that Congress didn’t empower the office to issue binding rules on NEPA reviews. The Trump administration followed up by largely scrapping the office’s permitting guidelines.

Though the appeals court didn’t invoke the nondelegation doctrine, it said Congress created the CEQ solely as an advisory council under NEPA, and former President Jimmy Carter elevated the office to a regulator that issued a “massive new body of law binding on all federal agencies.”

Su, however, distinguished the CEQ from Noem’s border wall waivers, saying Congress provided enough guardrails to the CEQ to survive the nondelegation doctrine test.

“For the border wall IIRIRA waiver, there’s nothing,” she said.

The case is Ctr. for Biological Diversity v. Noem, D. Ariz., No. 4:25-cv-00365.