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02/11/2017

Due Process, Commerce, International Travel, and Trump
Andrew Hyman

Regarding co-blogger Mike Ramsey's recent posts about "Originalism and Trump's Travel Ban," I am not convinced that the commerce power is insufficient to substantively support international immigration or travel restrictions upon refugees, and am also not convinced that the general executive power is sufficient to deprive all aliens of this liberty even if the most protective procedures are used.  This is not an argument for substantive due process (for which the kindest descriptor is "grossly illegitimate"), but rather an argument for constitutional limitations upon the bare executive power. A while back, I posed a question about the Commerce Clause: would anyone argue that Ford Motor Company might be exempt from federal regulation when it transfers manufacturing equipment from its property in Michigan to its property in Canada, merely because no buying or selling was involved in that transfer?  It certainly seems like commerce to me, because transnational commercial activities pretty clearly fall with the scope of the Commerce Clause.  I admit that an international  traveler's "purpose" may not be to engage in commerce, but that is nevertheless a very substantial "effect."  When people enter the U.S. they bring at least the demand part of "supply and demand" (and very often the supply part too), whether they want to or not.  Unlike in Wickard v. Filburn, there is actually a state (or national) line being crossed here, so it's clear to me that the commerce power does the job.

Regarding insufficiency of the general executive power, the Constitution presumably means that that power can be addressed by Congress via the Necessary and Proper Clause, but does not have to be addressed by Congress via the Necessary and Proper Clause.  So the question is whether immigration and international travel limitations are within the executive power even if Congress says nothing about it at all.  And the answer seems to be clearly "no" assuming the Due Process Clause is triggered, because then "law" is required, and the executive power is inherently insufficient to make "law" (regardless of what process or procedures are employed).  Additionally, it would not make sense to circularly argue that the executive power can execute any law whatsoever enacted under the Necessary and Proper Clause to effectuate that very same executive power; limitations from old English law might somewhat ameliorate this circularity problem, but they cannot give the president lawmaking power.

Of course, if international travel and immigration restrictions are within federal power (especially in view of the Migration or Importation Clause), that still leaves the question of which Bill of Rights limitations (if any) might be involved.  I will skip that issue, in this post.
 
I will say that the Trump administration would stand a much better chance of overcoming many of the quibbles of the Ninth Circuit by re-drafting executive order 13769, for example by explicitly exempting permanent resident aliens (i.e. "denizens").  A severability clause is always something worth considering too, and consulting with congressional leaders never hurts; if lots of findings of fact can be put into a new EO then that might be worth considering as well (e.g. the FBI is predicting an imminent "terrorist diaspora").