On November 21, the U.S. Court of Appeals for the District of Columbia, in Detroit International Bridge Company v. Government of Canada, et al., affirmed the ruling of the U.S. District Court for the District of Columbia that a 2012 “Crossing Agreement” between State of Michigan officials and the Government of Canada authorizing the construction of a second bridge to span the Detroit River separating Detroit and Windsor, Canada, was a legal exercise of their legal authority.

Detroit International Bridge Company has for many years operated the Ambassador Bridge, the only bridge crossing the Detroit River at this point. This bridge has been in existence since 1929, following the enactment of the necessary Congressional authorization, and requires maintenance. Indeed, several years ago, the plaintiff decided to build a “twin span” adjacent to the Ambassador Bridge to permit that maintenance to proceed without disrupting traffic. The new bridge envisioned by the Crossing Agreement, to be called the “Gordie Howe Bridge” honoring the celebrated hockey player, would be located within two miles of the Ambassador Bridge.

A 1909 Treaty between the U.S. and Great Britain requires that any construction of such bridges be authorized by special agreements and, in 1972, the Congress enacted the International Bridge Act (IBA) which permits the construction of international bridges subject to certain conditions. The agreement to build the Gordie Howe Bridge has been approved by the Secretary of State as being consistent with the national interest.

Detroit International Bridge Company has challenged these plans in state and federal court, but none of these challenges have been successful to date. It was argued that the IBA amounted to an unconstitutional delegation of Congressional authority to the Secretary of State, and that the agreement was plagued by a number of other constitutional and statutory infirmities. Assessing the argument that the Crossing Agreement constituted an unconstitutional delegation of legislative authority, the DC Circuit held that there was an “intelligible principle” at work that confined the Secretary’s exercise of his powers, and this satisfied the current non-delegation doctrine employed by the U.S. Supreme Court.

“But, as the government suggests, [Detroit International Bridge Company’s argument] is inconsistent with Supreme Court instruction and this court’s precedent; that is, the intelligible principle here derives from the narrow context of the IBA on international bridges and agreements with foreign nations, combined with the delegation of authority to the Secretary of State.”

It went onto confirm that

“[T]he 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.” (Internal citations omitted).

With respect to Detroit International Bridge Company’s arguments that its rights, created by earlier legislative enactments and Congressional appropriations, were being violated, the Court of Appeals held that these enactments made over the years, “do not vest in the Company public rights beyond those that Congress has specified” citing the Supreme Court’s 1837 decision in the Charles River Bridge v. Warren Bridge.