Thursday, March 8, 2018
The D.C. Circuit this week rejected a challenge to the Secretary of State's authorization of a second bridge linking Detroit with Windsor, Ontario, as an impermissible delegation of authority by Congress (among other things).
The case, Detroit International Bridge Co v. Government of Canada, arose in 2012 when the Secretary of State authorized a second bridge pursuant to the International Bridge Act. The IBA provides:
The consent of Congress is hereby granted to the construction, maintenance, and operation of any bridge and approaches thereto, which will connect the United States with any foreign country . . . and to the collection of tolls for its use, so far as the United States has jurisdiction.
The plaintiff, which owns and operates the first bridge (the Ambassador Bridge), sued, arguing that the IBA violated the nondelegation doctrine, among other claims.
The D.C. Circuit this week rejected the plaintiff's nondelegation claim (along with the others). The court, quoting Zemel v. Rusk, said that there's a thumb on the scale against nondelegation challenges in the area of foreign affairs, because Congress "must of necessity paint with a brush broader than it customarily wields in domestic areas." It then compared the case to the congressional delegation in TOMAC v. Norton (D.C. Cir. 2006):
Applying these principles, this court has held that a delegation authorizing the Secretary of the Interior, who has a trust obligation with respect to Indians, "to acquire real property for the [Pokagon Indian] Band," was not unconstitutional because it was "cabined by 'intelligible principles' delineating both the area in and the purpose for which the land should be purchased. Here too, the Secretary's authority is limited by an "area"--navigable waters between the U.S. and Canada or Mexico--and a "purpose"--the construction of international bridges. Thus, the intelligible principle is that in view of the Secretary's mission relating to foreign affairs, the Secretary will review international bridge agreements for their potential impact on United States foreign policy.