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Center For Biological Diversity v. McAleenan

United States District Court, District of Columbia

September 4, 2019

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs,
v.
KEVIN McALEENAN, Acting Secretary of the Department of Homeland Security, et al., Defendants.

          MEMORANDUM OPINION

          KETANJI BROWN JACKSON, UNITED STATES DISTRICT JUDGE

         More than 20 years ago, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (“the IIRIRA” or “the Act”), an immigration and border-security reform statute that was intended, in substantial part, “to improve deterrence of illegal immigration to the United States[.]” H.R. Rep. No. 104-828, at 1 (1996) (Conf. Rep.); see also Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C., Title I, 110 Stat. 3009-546 (1996). To that end, Congress expressly authorized the erection of physical barriers and roads “in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry[, ]” Pub. L. No. 104-208, Div. C., Title I, § 102(a), 110 Stat. 3009-546, 554 (1996), and it specifically identified the border near San Diego, California, as one such area, id. § 102(b). Moreover, in order to facilitate swift construction of these new border barriers, Congress authorized the Attorney General of the United States to waive otherwise-applicable provisions of two environmental statutes-the Endangered Species Act of 1973 (“ESA”), 16 U.S.C. § 1531-44, and the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321-4370m-12-to the extent “necessary[, ]” as determined by the Attorney General. Pub. L. No. 104-208, Div. C., Title I, § 102(c), 110 Stat. 3009-546, 554 (1996). Significantly for present purposes, in the 23 years that have transpired since the initial passage of the IIRIRA, Congress has amended the statute not only to identify additional priority areas for construction, see Secure Fence Act of 2006, Pub. L. No. 109-367, § 3, 120 Stat. 2638, 2638-39 (2006); Dep't of Homeland Sec. Appropriations Act, 2008, Pub. L. No. 110-161, § 564, 121 Stat. 1844, 2090-91 (2008), but also to expand the waiver authority to include all laws (not just the two environmental statutes), and to limit significantly the jurisdiction of the federal courts to adjudicate challenges to waivers that are issued pursuant to the IIRIRA's rapid-construction mandate, see REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, Title I, § 102, 119 Stat. 231, 306 (2005).

         The scope of the IIRIRA's waiver authorization and this Court's ability to consider legal actions that contest the government's waiver of environmental laws to speed the construction of border barriers are the core legal issues in the instant case. On January 22, 2018, the Secretary of the Department of Homeland Security (“DHS”) announced that DHS was invoking the IIRIRA to waive the application of 25 laws with respect to the construction of physical barriers along a 20-mile stretch of the border in New Mexico (hereinafter “the New Mexico Waiver”). See Determination Pursuant to Section 102 of the IIRIRA, as Amended, 83 Fed. Reg. 3, 012, 3, 013-14 (Jan. 22, 2018). Plaintiffs Center for Biological Diversity, Southwest Environmental Center, Defenders of Wildlife, and Animal Legal Defense Fund (“Plaintiffs”) have brought the instant action to contest the DHS Secretary's waiver decision; they claim, primarily, that the Secretary's waiver determination is ultra vires and unlawful “because it exceeds the limited grant of authority for such waivers contained in IIRIRA Section 102, ” (Compl., ECF No. 1, ¶ 2), and that the New Mexico Waiver “will have numerous negative impacts on the wildlife, plants, and the sensitive biological habitats on and near the proposed” project site (id. ¶ 60). Plaintiffs also insist that the IIRIRA's waiver authority is unconstitutional in various ways. (See Id. ¶ 2 (“[A]ny interpretation of [IIRIRA] Section 102 that would sanction the issuance of the New Mexico Waiver would render this statutory provision so broad and unbounded in scope that it would run afoul of the [c]onstitutional principles of Separation of Powers, the Non-Delegation Doctrine, the Presentment Clause and other constitutional provisions.”).)

         Before this Court at present are two dispositive cross-motions that the parties in this matter have filed. Plaintiffs have moved for summary judgment on their ultra vires and constitutional claims, and DHS has moved to dismiss Plaintiffs' claims or, in the alternative, request summary judgment. (See Pls.' Mot. for Summ. J. (“Pls.' Mot.”), ECF No. 16; Defs.' Mot. to Dismiss & Alternatively Cross-Mot. for Summ. J. (“Defs.' Mot.”), ECF No. 21.) DHS maintains, as a threshold matter, that this Court lacks subject-matter jurisdiction to determine whether the New Mexico Waiver is ultra vires, because “Congress has expressly withdrawn district court jurisdiction to review non-constitutional challenges to the [DHS] Secretary's exercise of waiver authority[.]” (Defs.' Opp'n to Pls.' Mot. & Mem. in Supp. of Defs.' Mot. (“Defs.' Mem.”), ECF No. 21-1, at 21.)[1] In addition, DHS asserts that Plaintiffs' claims are meritless, because the Secretary has not exceeded the agency's statutory authority in issuing the New Mexico Waiver (see Id. at 26-42), and because the IIRIRA's grant of waiver authority is not so broad as to violate the Constitution (see Id. at 42-50). Plaintiffs respond that the Court has jurisdiction to hear their ultra vires claims despite the statutory restrictions on judicial review because the New Mexico Waiver was not properly issued pursuant to the IIRIRA (see Pls.' Mem. in Supp. of Pls.' Mot. (“Pls.' Mem.”), ECF No. 16-1, at 42-45), and they further maintain that they are entitled to summary judgment with respect to their ultra vires and constitutional claims (see Id. at 26-42, 45-54).

         For the reasons explained fully below, this Court concludes that Congress has unambiguously precluded all non-constitutional legal challenges to the exercise of the DHS Secretary's waiver authority, including ultra vires claims. Adding a belt to these suspenders, Congress has further removed this Court's subject-matter jurisdiction over any non-constitutional waiver challenges; therefore, this Court is without power to address the merits of Plaintiffs' ultra vires contentions. The Court also finds that Plaintiffs' constitutional claims cannot proceed, based on the reasoning of a persuasive prior opinion from this district that addresses the constitutionality of the IIRIRA's section 102(c) waiver authority in substantially similar circumstances and holds that Congress has provided sufficient limitations to the agency's exercise of power to comport with Constitution's separation-of-powers requirements. Consequently, Plaintiffs' motion for summary judgment will be DENIED, and Defendants' cross motion will be GRANTED, insofar as both the ultra vires and the constitutional claims will be dismissed. A separate Order consistent with this Memorandum Opinion will follow.

         I. BACKGROUND

         A. Section 102 Of The Illegal Immigration Reform and Immigrant Responsibility Act

         Congress enacted the IIRIRA in 1996, seeking to amend the Immigration and Nationality Act of 1965 (“INA”). As described in the Conference Report, the purpose of the IIRIRA was

to improve deterrence of illegal immigration to the United States by increasing border patrol and investigative personnel, by increasing penalties for alien smuggling and for document fraud, by reforming exclusion and deportation law and procedures, by improving the verification system for eligibility for employment, and through other measures, to reform the legal immigration system and facilitate legal entries into the United States, and for other purposes[.]

H.R. Rep. No. 104-828, at 1. The IIRIRA “marked one of the most significant reforms to immigration since the [INA], ” Marshal Garbus, Environmental Impact of Border Security Infrastructure: How Department of Homeland Security's Waiver of Environmental Regulations Threatens Environmental Interests Along the U.S.-Mexico Border, 31 Tul. Envtl. L.J. 327, 334 (2018), and it was developed in the midst of a “political shift to increase border security during the Clinton administration's Southwest Border Strategy, which made control of unauthorized immigration a top priority[, ]” id. at 335. Leading up to the enactment of the IIRIRA, a measure known as “Operation Gatekeeper was the Clinton administration's initiative to control unauthorized immigration along the San Diego/Tijuana border, which had been one of the highest traffic locations for unauthorized border crossings.” Id.[2]

         1. Congress commands construction of physical barriers in “areas of high illegal entry into the United States”

         As originally enacted, section 102(a) of the IIRIRA provided that the Attorney General “shall take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.” Pub. L. No. 104-208, Div. C., Title I, § 102(a), 110 Stat. 3009-546, 554 (1996) (codified at 8 U.S.C. § 1103 note).[3] The statute itself did not delineate what qualifies as an “area[] of high illegal entry, ” except insofar as section 102(b) provided specifically for “construction of fencing and road improvements in the border area near San Diego, California, ” id. § 102(b) (capitalization altered).[4]

         In section 102(b) of the IIRIRA, which is presently entitled “Construction of fencing and road improvements along the border, ” Congress proceeded beyond section 102(a)'s broad grant of discretion to the Executive Branch with respect to border construction, to specify certain geographical areas along the southwest border where “[a]dditional fencing” must be built, and in this regard, it designated particular stretches of land as “[p]riority areas[.]” IIRIRA § 102(b)(1)(A), (B). Congress initially pinpointed a 14-mile stretch of the international land border near San Diego, California, “starting at the Pacific Ocean and extending eastward, ” and mandated construction “of second and third fences, in addition to the existing reinforced fence, and for roads between the fences.” IIRIRA § 102(b)(1) (1996) (“Construction of Fencing and Road Improvements in the Border Area Near San Diego, California”). In 2006, Congress amended section 102(b)(1) to identify five areas along the southern border (no longer including the 14-mile stretch that section 102(b) had previously addressed), and specifically required the DHS Secretary to “provide for at least 2 layers of reinforced fencing, the installation of additional physical barriers, roads, lighting, cameras, and sensors” in those five areas. Id. § 102(b)(1)(A) (2006).[5]

         Congress amended section 102(b)(1)(A) again in 2008; it eliminated the specified list of geographical areas and replaced that language with the following statement: “In carrying out subsection (a), the Secretary of Homeland Security shall construct reinforced fencing along not less than 700 miles of the southwest border where fencing would be most practical and effective and provide for the installation of additional physical barriers, roads, lighting, cameras, and sensors to gain operational control of the southwest border.” Id. § 102(b)(1)(A). However, Congress remained silent with respect to how or why the Secretary was to select “not less than 700 miles” for fencing along the southwest border. See, e.g., Michael John Garcia, Cong. Research Serv., R43975, Barriers Along the U.S. Borders: Key Authorities and Requirements, at 11-12 (2016).

         As mentioned previously, through its various amendments to the IIRIRA's section 102, Congress has consistently and unequivocally established that, with respect to the creation of physical barriers and roads, certain spots along the southern border are “[p]riority areas.” Id. § 102(b)(1)(B). In 2006, section 102(b)(1)(B) provided specific deadlines for the construction of such barriers in two of the five geographic areas that Congress identified. See Id. § 102(b)(1)(B) (2006). Most recently, in 2008, Congress amended the “[p]riority areas” provision-section 102(b)(1)(B)-to require the Secretary of DHS to “identify the 370 miles, or other mileage determined by the Secretary . . . along the southwest border where fencing would be most practical and effective in deterring smugglers and aliens attempting to gain illegal entry into the United States[.]” Id. § 102(b)(1)(B)(i).[6] The statute further specifies that this “authority . . . shall expire on December 31, 2008, ” id., and that fencing along those 370 (or other) miles must be completed “not later than December 31, 2008, ” id. § 102(b)(1)(B)(ii).

         The 2008 amendments also added a new provision to section 102(b)(1) that required DHS to “consult with the Secretary of the Interior, the Secretary of Agriculture, States, local governments, Indian tribes, and property owners in the United States to minimize the impact on the environment, culture, commerce, and quality of life for the communities and residents located near the sites at which such fencing is to be constructed.” Id. § 102(b)(1)(C)(i).

         2. Congress permits waiver of laws that impede construction of border barriers, and limits federal litigation concerning such waivers

         Notably, in addition to requiring the construction of physical barriers and roads in highly trafficked areas of the border, Congress also cleared the way for swift execution of the IIRIRA's section 102 border-barrier mandate. At the time the IIRIRA was enacted, certain environmental statutes were chief among the legal impediments to the rapid construction of the physical barriers and roads that the statute prescribed- specifically, the Endangered Species Act and the National Environmental Policy Act[7]-and Congress expressly addressed its concerns about the delay that enforcement of such environmental mandates might engender in the text of the IIRIRA itself, by authorizing the waiver of the requirements that these two statutes impose. When enacted in 1996, section 102(c) stated: “[t]he provisions of the [ESA] and the [NEPA] are waived to the extent the Attorney General deems necessary to ensure expeditious construction of the barriers and roads under this section.” IIRIRA § 102(c) (1996).

         By 2005, it had become clear that, “[d]espite the existing waiver provision, construction of the San Diego barriers has been delayed due to a dispute involving other laws.” H.R. Rep. No. 109-72 (Conf. Rep.), at 171 (2005). Consequently, Congress amended the IIRIRA's waiver provision to permit the DHS Secretary to waive all legal requirements that can impede expeditious construction of border barriers, see IIRIRA § 102(c)(1); see also H.R. Rep. No. 109-72, at 171 (explaining that “[c]ontinued delays caused by litigation have demonstrated the need for additional waiver authority with respect to other laws that might impede the expeditious construction of security infrastructure along the border[, ]” and noting that Congress decided to authorize the waiver of “all laws” rather than “all legal requirements” in order to “clarify[] [its] intent that the Secretary's discretionary waiver authority extends to any local, state[, ] or federal statute, regulation, or administrative order that could impede expeditious construction of border security infrastructure”). Thus, section 102(c) now specifies that

[n]otwithstanding 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.

IIRIRA § 102(c)(1).

         Finally, and significantly for present purposes, Congress also specifically addressed-and significantly restricted-the scope of the federal courts' authority to review legal challenges that arise from DHS's implementation of the IIRIRA's waiver provision. This change occurred as part of the package of amendments that expanded the DHS Secretary's waiver authority in the manner described above. In its entirety, the provision of the IIRIRA's section 102(c) that addresses federal court review states:

(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 [i.e., the waiver provision]. 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.
(B) Time for filing of complaint.- Any cause or claim brought pursuant to subparagraph (A) shall be filed not later than 60 days after the date of the action or decision made by the Secretary of Homeland Security. A claim shall be barred unless it is filed within the time specified.
(C) Ability to seek appellate review.- An interlocutory or final judgment, decree, or order of the district court may be reviewed only upon petition for a writ of certiorari to the Supreme Court of the United States.

Id. § 102(c)(2).

         Per the above-quoted statutory language, any legal action challenging an act of or determination by DHS Secretary with respect to the waiver of legal requirements in order to facilitate the construction of physical barriers along the border pursuant to subsection 102(c)(1) must allege a constitutional violation, and has to be filed in federal district court within 60 days of the Secretary's notice of such waiver. See id. § 102(c)(2)(A), (B). In addition, the federal district court (which has exclusive jurisdiction to hear any such claims) can only entertain such a challenge if the claim alleges a violation of the Constitution. See Id. § 102(c)(2)(A). Furthermore, the Supreme Court is the only tribunal vested with the authority to review any such district court determination. See Id. § 102(c)(2)(C). In this way, Congress has made crystal clear that it intends “to ensure that judicial review of actions or decisions of the Secretary not delay the expeditious construction of border security infrastructure, thereby defeating the purpose of the Secretary's waiver.” H.R. Rep. No. 109-72, at

         B. Facts Pertaining To The Instant Challenge

         Prior to 2017, the Secretary of DHS had issued waivers pursuant to section 102(c) of the IIRIRA on just five occasions. (See Pls.' Mem. at 20; Defs.' Mem. at 16.)[8] Each of these waivers related to one of the construction projects that Congress had specifically delineated in section 102(b). (See Pls.' Mem. at 36 & n.32.) Then, on January 25, 2017, President Donald Trump issued Executive Order No. 13, 767- entitled “Border Security and Immigration Enforcement Improvements”-which, among other things, ordered the DHS Secretary to “take all appropriate steps to immediately plan, design, and construct a physical wall along the southern border[.]” 82 Fed. Reg. 8, 793, 8, 794 (Jan. 25, 2017). According to that executive order, the “wall” must be “a contiguous, physical wall or other similarly secure, contiguous, and impassable physical barrier.” Id. Pursuant to this mandate, in August and September of 2017, the DHS Secretary issued two waivers under the IIRIRA's section 102(c). See 82 Fed. Reg. 35, 984, 35, 984-85 (Aug. 2, 2017); 82 Fed. Reg. 42, 829, 42, 829-31 (Sept. 12, 2017).[9]

         As relevant here, on January 22, 2018, DHS published in the Federal Register the Secretary's determination that a specified 20-mile stretch of border in New Mexico qualifies as “an area of high illegal entry” under section 102(a) of the IIRIRA; that “[t]here is presently a need to construct physical barriers and roads in the vicinity of the border of the United States to deter illegal crossings in the project area”; and that waiver of 25 statutes “in their entirety, ” including the ESA and the NEPA, is “necessary” to “ensure the expeditious construction of the barriers and roads in the project area[.]” 83 Fed. Reg. 3, 012, 3, 013 (Jan. 22, 2018). According to Plaintiffs, the project area that is the subject of the New Mexico Waiver “is located in the middle of the internationally-renowned Chihuahuan Desert, considered to be one of the world's most biologically diverse deserts due to the presence and abundance of endemic species that exist nowhere else on earth.” (Pls.' Mem. at 23.) Plaintiffs also maintain that, in additional to several detrimental non-environmental impacts, “[t]he New Mexico Border Wall Project will result in numerous negative impacts on the wildlife, vegetation, and the sensitive biological habitats on and near the proposed Project site.” (Id.; see also id. at 23-25.)

         DHS announced the commencement of its work on the New Mexico Border Wall Project on April 9, 2018.[10] In a press release, U.S. Customs and Border Protection clarified that, “[a]s part of the President's Executive Order 13767, and at the direction of the Department of Homeland Secretary, construction for a border wall replacement in Santa Teresa with new bollard style wall will begin on Monday, April 9[, ]” and that “[c]onstruction is slated to run for approximately 390 days.”[11] During the motions hearing this Court held in December of 2018, Defendants' counsel indicated that the New Mexico Border Wall Project's “barrier installation” was completed in October of 2018, and that “the accompanying road” was “expected to be completed in January [of 2019].” (Hr'g Tr., ECF No. 32, at 56:9-11.)[12] DHS also presently asserts that the agency consulted with “representatives from the Department of the Interior, U.S. Fish & Wildlife Service [(‘USFWS')], and Bureau of Land Management [(‘BLM')]” prior to the DHS Secretary's determination that the New Mexico Waiver should be issued (Defs.' Mem. at 18), and that before the April 2008 commencement of construction, DHS consulted with “relevant Native American tribes and the New Mexico State Historic Preservation Officer[, ]” as well as “two New Mexico state agencies, the local county manager, USFWS, BLM, and the U.S. Army Corps of Engineers” (id.).

         C. Procedural History

         Plaintiffs filed the instant lawsuit on March 22, 2018 (see Compl.), claiming that the DHS Secretary's invocation of waiver authority under IIRIRA section 102(c) with respect to the New Mexico Border Wall Project was ultra vires and therefore unlawful (see Id. ¶¶ 64-72 (Count One); id. ¶¶ 73-80 (Count Two)), and that the New Mexico Waiver violates three provisions of the Constitution of the United States: the Take Care Clause (see Id. ¶¶ 81-85 (Count Three)); the Non-Delegation and Separation of Powers Doctrine (see Id. ¶¶ 86-94 (Count Four)); and the Presentment Clause (see Id. ¶¶ 95- 100 (Count Five)). Plaintiffs' complaint claims that the Secretary lacked statutory authority to issue the New Mexico Waiver-i.e., that the Secretary acted in an ultra vires manner-because, in Plaintiffs' view, section 102(c)'s waiver authority “is limited to the specific border barriers and roads [that Congress] required to be constructed pursuant to IIRIRA Section 102(b)” (id. ¶ 67 (emphasis added)), yet DHS had already fulfilled section 102(b)'s construction requirements at the time that the New Mexico Waiver was issued (see Id. ¶ 70). Alternatively, Plaintiffs argue that the Secretary impermissibly transcended the agency's statutory authority because DHS “failed to conduct necessary prerequisites for exercising the waiver authority for expedited construction as set forth in provision IIRIRA Section 102(b)(1)(C).” (Id. ¶ 74.)

         Plaintiffs' complaint further claims that, by issuing the New Mexico Waiver, DHS has violated the Constitution's venerated separation-of-powers principles. First, insofar as the DHS Secretary's issuance of the New Mexico Waiver “failed to comply with the requirements and limitations of IIRIRA Section 102” (id. ¶ 85), Plaintiffs maintain that the decision to issue the waiver violated the Take Care Clause of the United States Constitution, which requires that the Executive Branch “‘shall take Care that the Laws be faithfully executed[.]'” (Id. ¶ 83 (quoting U.S. Const. art. II, § 3).) Second, Plaintiffs assert that the IIRIRA's section 102(c) itself transgresses the constitutional non-delegation doctrine, because the statute “delegates to the Executive Branch, namely the DHS Secretary, the legislative power to waive the application of any Congressionally-enacted law to construction on the U.S.-Mexico border” without “an intelligible general policy to guide [the Secretary's] decision-making.” (Id. ¶¶ 92, 93.) Third, and finally, Plaintiffs argue that the IIRIRA's section 102(c) violates the Presentment Clause, both on its face and as applied to the circumstances of the instant case, because the statute impermissibly “vests unilateral power in the DHS Secretary to waive the application of any laws in areas along the border for purposes of building border walls without Congress passing a law to void the specific laws at issue or limit their application, and presenting it to the President” (id. ¶ 98), and because, with respect to the New Mexico Border Wall Project in particular, the Secretary “chose which laws to waive and which laws to obey, without an act of Congress specifying which particular law or set of laws could be waived and without the presentation of said Congressional act to the President” (id. ¶ 99).[13]

         In addition to the complaint, Plaintiffs have also filed a motion for summary judgment that restates and reinforces the assertions that are made in their pleading. (See Pls.' Mot. (filed on May 10, 2018); Pls.' Mem.) Defendants responded, on June 15, 2018, by filing a motion to dismiss Plaintiffs' complaint, or, in the alternative, for summary judgment. (See Defs.' Mot.). In their motion, Defendants argue, as a threshold matter, that this Court lacks subject-matter jurisdiction to determine whether the New Mexico Waiver is ultra vires, as Plaintiffs claim, because “Congress has expressly withdrawn district court jurisdiction to review non-constitutional challenges to the Secretary's exercise of waiver authority[.]” (Defs.' Mem. at 21; see also Id. (quoting IIRIRA § 102(c)(2)(A)); id. at 19-26). Defendants also contend that Plaintiffs' ultra vires claims fail as a matter of law. (See, e.g., id. at 27 (asserting Plaintiffs have not “identif[ied] a ‘statutory right' by which Plaintiffs are entitled to vindication[, ]” as valid ultra vires claims allegedly require); see also id. at 28-42 (arguing that DHS did not violate any statutory prohibition or requirement when it issued the New Mexico Waiver). Defendants further insist that the IIRIRA's section 102(c) and the New Mexico Waiver comport with the Constitution. (See Id. at 42-50.)

         This Court held a motions hearing on the parties' cross-motions on December 18, 2018. (See Min. Entry of Dec. 18, 2018.) During the hearing, Defendants represented, for the first time, that “the Department of Homeland Security and [the DHS Secretary] had relied on both section 102(a) and 102(b) of the IIRIRA when issuing the waiver at issue in this case” (Min. Order of Dec. 19, 2018 (emphasis added)), and the Court subsequently ordered the parties to file supplemental briefs (at the Plaintiffs' request) to address the potential implications of this new revelation on the parties' arguments (id.). After the hearing, the Court also acted to consolidate another matter-Center for Biological Diversity v. Nielsen, No. 18-cv-2396-with the instant case. (See Min. Order of Jan. 9, 2019; see also Resp. to Order to Show Cause, 18-cv-2396, ECF No. 9, at 1 (agreeing that the Court “should consolidate” the two cases because they “involve many of the same parties and both challenge [the DHS Secretary's] invocation of Section 102 of [the IIRIRA] to waive dozens of laws that would otherwise apply to the construction of border wall projects” (footnotes omitted)).)[14]

         The parties filed the aforementioned supplemental briefs by February 28, 2019. (See ECF Nos. 31, 33, 34.) Thus, the parties' ...


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