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02/24/2020

Ilya Somin on Nondelegation and Travel Bans
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: A Nondelegation Challenge to Trump's Travel Bans.  From the introduction: 

President Trump's recently announced expanded travel ban policy has most of the same moral, policy, and constitutional flaws as his previous travel bans. Nonetheless, the conventional wisdom holds that there is little, if any prospect of successfully challenging it in court, because the most obvious arguments against it were rejected by the Supreme Court in Trump v. Hawaii, which ruled against legal challenges to the previous travel ban policy, of which the new one is an expansion.

... [B]oth the previous travel ban policy and the new expanded version are vulnerable to constitutional challenge on a basis that was never even considered by the Supreme Court in Trump v. Hawaii: nondelegation. And it's a basis that could potentially prove appealing to at least some of the very same conservative justices who were crucial to the majority in Trump. Liberal justices might support it too.

Nondelegation is the idea that Congress cannot delegate legislative power to the executive branch. The Constitution gives legislative power to Congress, not the president. Thus, there must be some limit to Congress' ability to give the latter the power to determine what is or is not illegal. For example, it would surely be unconstitutional for Congress to give the president the power to ban any private activity  he wants, so long as he decides doing so would be in the public interest.

Where to draw the line between legitimate discretion and impermissible  delegation is a hard issue that has bedeviled judges and legal scholars. For a long time, in fact, the conventional wisdom was that the Supreme Court had no interest in giving nondelegation doctrine any teeth. But last year's ruling in Gundy v. United States shows that at least four conservative justices are interested in enforcing the doctrine more robustly than has so far been the case. Indeed, even the four liberals may be willing to give it at least some modest teeth- enough, as we shall see, to place the travel bans in peril.

As interpreted by the majority opinion in Trump v. Hawaii, federal law grants the president virtually unlimited discretion to exclude immigrants and other potential entrants into the United States, for almost any reason he wants. If that doesn't qualify as an unconstitutional excessive delegation, it is difficult to see what does.

Perhaps, but I'm not convinced that this is the best vehicle for pursuing a revived nondelegation doctrine (assuming that's an originalist goal, contra this article).  First (as Professor Somin acknowledges) there's an argument that excluding aliens at the border is an independent constitutional authority of the President, apart from any delegation; Justice Thomas made this argument in concurrence in Trump v. Hawaii.  Second, it may be that the nondelegation doctrine has less force in foreign affairs that it does elsewhere.  That was the actual holding of the Curtiss-Wright case, and (unlike that case's unsupportable dicta) it might have some foundation in the original design.  (Mike Rappaport suggested an originalist "selective" nondelegation doctrine that might have less force in foreign affairs in this article).