Immigration

Federal Court Rules Against Trump's Work Visa Ban

The court concludes that the ban is illegal in large part because the broad authority claimed by the president violates the nondelegation doctrine.

|The Volokh Conspiracy |

In an important decision issued last week, US District Judge Jeffrey White of the Northern District of California (a Republican George W. Bush appointee) ruled that President Trump's recent proclamation suspending nearly all entry of foreign workers on employment visas is illegal. The case was brought by a coalition of employer groups, including the US Chamber of Commerce, the National Association of Manufacturers, and others. I wrote about the issues at stake here:

Section 212(f) [of the Immigration and Nationality Act], codified as 8 USC Section 1182(f)… gives the president the power to bar entry into the US by any foreign national whom he deems to "detrimental to the interests of the United States." In Trump v. Hawaii, Chief Justice John Roberts' majority opinion interpreted this as giving the president the power to exclude almost any alien he wants, so long as he makes a finding that the person's presence is "detrimental to the interests" of the US. Under Roberts' logic, the president need not prove that supposed threat to US "interests" is real, and there is no limitation on what qualifies as a relevant "interest…."

The business groups argue there are some limitations on Section 212(f) even in the wake of Trump v. Hawaii. But if the plaintiffs do not prevail under the [Administrative Procedure Act], and cannot persuade the courts to adopt a more limited interpretation of Section 212(f), the case could come down to the nondelegation issue. That question was not addressed in Trump v. Hawaii, and thus could be used to limit the president's power without in any way overruling or limiting the scope of that decision…

Trump v. Hawaii did not consider the possibility that this view of Section 1182 violates the "nondelegation" doctrine: the principle that Congress cannot delegate sweeping lawmaking power to the executive. In last year's ruling in Gundy v. United States, both liberal and conservative justices indicated the real limits on that delegation of power. In a dissenting opinion joined by two other conservatives, Justice Neil Gorsuch emphasized that the Constitution does not allow the president to exercise "the power to adopt generally applicable rules of conduct governing future actions by private persons." Only Congress may do that. Justice Elena Kagan's plurality opinion for the Court held that Congress may not give the president "'unguided' and 'unchecked' authority" to determine the scope of a law, especially when violations carry criminal penalties. Trump's use of Section 1182 to impose a sweeping ban on immigration pretty obviously makes "generally applicable rules of conduct" for private parties—many millions of them…. Just as clearly, the idea that the president can exclude any potential immigrant for any reason, subject to the imposition of criminal penalties for violators, is a case of"'unguided' and 'unchecked' authority," if anything is.

Sure enough, Judge White's ruling is in large part based on nondelegation concerns:

Congress' delegation of authority in the immigration context under Section 1182(f) does not afford the President unbridled authority to set domestic policy regarding employment of nonimmigrant foreigners. Such a finding would render the President's Article II [foreign relations] powers all but superfluous….

Indeed, there must be some measure of constraint on Presidential authority in the domestic sphere in order not to render the executive an entirely monarchical power in the immigration context, an area within clear legislative prerogative. Such unrestricted authority would be contrary to Congress' explicit delegation of powers in foreign affairs and national security….

Such unrestrained delegation in the context of immigration would plainly contradict the structural foundation undergirding the Constitutional separation of powers…

[T]he Court maintains that Defendants' contention that any finding [that the admission of visa holders is "detrimental" to US interests] is sufficient in this purely domestic context would constitute an unrestrained delegation of legislative power and would therefore be an invalid application of the statute. See, e.g., Whitman v. American Trucking Ass'ns, 531 U.S. 457, 474 (2001) (holding that where a statute provides no guidance for the exercise of discretion or that has "conferred authority to regulate an entire economy on the basis of no more precise a standard than stimulating the economy by assuring 'fair competition,'" such a statute must be stricken as invalid)…

Judge White argues that the visa ban at issue in this case is distinguishable from the travel ban upheld in the Trump v. Hawaii because the former deals with domestic "economic" issues, while the latter addresses foreign relations and national security, where nondelegation concerns are less significant. I am not sure this distinction fully works, since the national security concerns cited by the administration in Trump v. Hawaii were  bogus and pretextual.

If the supposed national security interests claimed in Trump v. Hawaii were nonetheless sufficient, then the administration should be able to cook up some equally dubious (but still sufficient) national security rationales for the employment visa ban. In addition, the Constitution nowhere grants the president sweeping power over migration for national security or foreign relations reasons either. As Judge White notes,  to the extent that the federal government has general power over immigration (which, at least under the original meaning is questionable), it is a legislative power, not an executive one.

The better way to distinguish Trump v. Hawaii is to simply point out that the Supreme Court's ruling in that case simply did not consider nondelegation issues. Thus, a lower court can use such concerns to narrow the scope of Section 1182(f) or even rule that provision unconstitutional without in any way contradicting Trump v. Hawaii. I discussed these issues in more detail here, here, and here.

Judge White also offers several purely statutory rationales for ruling against the administration in this case, most notably that their interpretation of the law "eviscerates" large portions of the Immigration and Nationality Act, which permit admission of various categories of workers. As he puts it, "The basic tenets of statutory construction require that a court reject an interpretation of a statute which renders entire portions of the remainder of the statute invalid." Judge White explains that the administration's claim that exclusion of these workers is needed to protect domestic labor from competition during the coronavirus crisis is at odds with the INA's preexisting legislative scheme for balancing business and labor interests:

[T]he Proclamation eviscerates whole categories of legislatively-created visa categories. Until, at a minimum, the end of the year, the Proclamation simply eliminates H-1B, H-2B, L-1, and J-1 visas and nullifies the statutes creating those visa categories. The Proclamation, by its explicit terms, rewrites the carefully delineated balance between protecting American workers and the need of American businesses to staff their operations with skilled, specialized, and temporary workers.

At least for now, I will leave these  statutory considerations to others with greater relevant expertise. Immigration law scholar Peter Margulies has a more detailed discussion of them at the Lawfare website.

Judge White's decision is only a ruling on a preliminary injunction, and thus not a final decision on the merits. But it leaves no doubt where the court comes down on the latter score. At least so long as the injunction holds, it halts implementation of Trump's visa suspension with respect to all the many employers involved in the lawsuit.

The administration will surely appeal the ruling. The case will likely end up in the US Court of Appeals for the Ninth Circuit, and perhaps even the Supreme Court. Unless Joe Biden wins the election and rescinds Trump's proclamation (which is very possible), this ruling is likely to be just the beginning of a prolonged legal battle. But it is nonetheless notable that Judge White—a Republican appointee—ruled against the administration on this important nondelegation/immigration issue. If his decision stands up on appeal, it will have major implications for both immigration law and nondelegation doctrine generally.

NEXT: Turmoil in Texas Attorney General's Office (Updated)

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  1. But will Biden be allowed to rescind it? Isn’t the new rule that you can’t undo the previous poor judgement EO?

    1. The new rule is not really that new. It just says you must make the proper factual findings and jump through the APA’s hoops once a reliance interest in vested.

      Say what you will about Biden, but he’s a competent technocrat and is unlikely to screw that up.

      1. I will say Biden will find a way to screw it up. He and his media handlers will cover that up of course, and pretend nothing was his fault.

        1. Biden isn’t stupid. He has dementia. It his his voters that are stupid.

          1. Biden voters are stupid.

            Trump voters are half-educated bigots, superstitious dullards, and disaffected clingers.

            Where are we to find hope for America, dan1650?

            1. Arthur,
              A better question is: If Biden has dementia, but totally kicked Trump’s ass in the debate, so thoroughly destroyed him, made Trump look like a raving-mad asshole and jackass . . . what does that say about Trump? What descriptive term is 213.4% worse than “dementia?”

              1. Thats a hypothetical right? The meme immediately after the debate was Trump was too mean to Biden. There was little to no reference to Biden outright winning even among the left. The ‘Biden won and was in control’ meme only came out a day or two later.

                1. I know that math is hard for dumb people, but there were actual polls as to who won. (No, not the Telemundo twitter poll.) The immediate poll taken after the debate — not two days later — in fact showed that an overwhelming majority thought that Biden had won.

                  1. The leftwing sites are always going to show the leftwing guy won and rightwing sites are always going to show the rightwing guy won. That doesn’t change except in rare cases like the Telemundo poll you just mentioned. I’m actually talking about the tone of the narrative which is what matters.

                    1. I am not talking about “sites.” I am talking about polls.

                2. Here’s the result of my own unofficial poll: Just after the debate I went to several right-wing sites such as National Review, Fox, etc. I was interested to see if the lickspittles & toadies still had the heart to peddle their “Biden Dementia” bullshit right after it blew-up in their faces.

                  To their credit, they didn’t. Whereas pre-debate their commentary was thick with that garbage, it almost disappeared from their litany of lies, whining and snowflake paranoia just after the debate ended. Reality had intervened. After all, Biden was more coherent than his opponent, who typically spoke at a rambling grade-school level as always….

                  But over the days since, the visceral impact of what everyone saw with their own eyes faded so – yes – the usual suspects have begun peddling their dementia drivel once again. No doubt they’ll convince themselves Biden will be drooling & unintelligible by the second debate (if Trump doesn’t invent an excuse to cancel it). Experience shows they can convince themselves of anything. They are veterans at believing lies.

                  Then Biden will win the second debate too…..

                  1. I think Biden did what he needed to do, (Not drool.) and Trump didn’t do what he needed to do, (Look Presidential while Biden drooled.) so, on a relative scale, Biden came out on top.

                    On any absolute scale they both put in horrible performances. No, scratch that, all three did. All three of them were interrupting. Biden got Trump off balance by spewing that already debunked lie about him dissing the troops, and after that he never got his cool back, but shouldn’t he have been expecting that?

                    If fact checking were impartial, it would have gone badly for Biden; Yes, Hunter really did get that $3.5M wire transfer. No, Trump didn’t insult the troops. (Though Biden really did.)

                    I hear that the next “moderator” is even more in the tank for Biden; Apparently the Republican members of the debate commission are all NeverTrumpers.

                    But, dumpster fire election, why not have dumpster fire debates?

                    1. (1) Your guys set the standard for Biden, ensuring his victory. Of course he wasn’t great; no one ever expected he would be. But he damn sure didn’t have dementia & that was clear.

                      (2) Both interrupted; Trump just did so approximately ten-times more than Biden (that’s pretty close to a real number). Both lied, and Trump’s “advantage” in that category was probably greater than 10X. Given you’ve saddled yourself with a pathological liar to defend, Brett, it’s expected you’ll want to pounce on Biden’s lies, which is fair enough.

                      (3) The Senate report claims there was a “$3.5 million wire transfer to a company called Rosemont Seneca Thornton. The report then claims Hunter Biden “co-founded,” the company. After that, facts are pretty thin on the ground. Hunter Biden denies co-founding RST or having any financial stake in it, which could as easily be a complete lie as the truth. The only reason to give Hunter the benefit of the doubt is because of similar accusations of payoffs from China. In that case, monies went to a company Hunter drew little or no benefit from, yet are being sold by the Right as payoffs to him.

                      (4) Trump insulting the troops hasn’t been “debunked” – not by a long shot. Ya know, Brett, I respect John Kelly for being unwilling to confirm the stories. At least one person escaped from Trump with some dignity intact. But I bet one day in the future he will go on the record. What do you think he’ll say?

                      (5) Moderator in the “tank” for Biden, huh? God above, that’s so pathetic. Ever since Trump took the oath of office & lied about the inauguration crowd minutes later, he’s been regularly wiping his fat ugly butt on the office of the Presidency, day by day, week by week. But whenever someone reacts to his bullshit we hear plaintive whining from the cult how unfair it is. Remember that internet guy who demanded everyone leave Britney Spears alone? He could be repackaged as a Trump supporter easily. Didn’t it occur to you Wallace’s chosen topics were heavily favorable to Trump? That he decided to behave like a two-year old rather than take advantage of them isn’t Wallace’s fault.

          2. Trump did his first two years of college at Fordham. His sister, the appellate court judge, told Mary Trump, his clinical psychologist niece, that she used to do Donald’s college homework for him. She also said that DJT paid a smart Jewish kid to take the SATs for him. (It would have been easy to do in his day, when there was little or no security measures in effect, and we see from the Varsity Blue cases that it can still be accomplished even today.) Next, with the help of his brother’s friend who worked in admissions at Penn, DJT transferred there. (Penn was much less selective in those days than it is now, and still the school is relatively easy for legacies and wealthy families, as attested by Ivanka and Donnie, Jr.’s atendance there.) The graduation program for Trump’s class did not list him as valedictorian, salutatorian, or recipient of any any academic honors or other distinctions. And preferring to keep objective evidence of his scholarship secret, Trump has Michael Cohen write to his military prep school, Fordham, and Penn to threaten them lawsuits if they ever released his transcripts without his permission, and they never have.

            If anyone thinks that Trump is possessed of superior intelligence, would they please point to the most impressive evidence of it that they can cite.

            1. He’s president and you’re here grousing about him…does that indicate anything?

              1. That in 2016, he was more popular than Hillary Clinton. Nothing more. I hate Ted Cruz (in the political whore and gutless bitch sense of the word “hate”), but he’s an extremely intelligent guy. Far far more intelligent than Trump. But yet Trump wiped the floor with him in the 2016 primaries and turned Cruz into, well, his bitch.

                If there’s a correlation between intelligence and political successes, it’s gotta be a really weak one. 🙂

                1. Actually, according to the polls he wasn’t more popular than Hillary. And he was out-spent 2-1.

                  And, how do you imagine he got the nomination in the first place? Bloomberg pretty much demonstrates that just spending money won’t accomplish that.

                  Is he Mensa or 3 Sigma material? Does he read scientific journals for fun? No.

                  Is he more intelligent than the average person? Yeah.

                  1. Brett,
                    What you are saying is: Trump is more intelligent than half the country. I’m sure that is true. You damn with faint praise. . . I doubt there is a single member of Congress who has an IQ of below 100 (excepting those who stay in Congress for 200 years and who become senile while still service, which is a non-zero number).

                    Your rhetorical questions were accurate. But you could have included, “Does he read *anything* for fun? A: No.” Someone who watches 6-10 hours of TV a day and never voluntarily reads says something about that person. Not sure what; but it ain’t a compliment. 🙂

            2. I’m starting to hear from Democrats that Trump is only 5-11 and 400 lbs, too.

              Really, if there’s anything stupider than trash talk, it’s trash talk after you got your ass handed to you.

              1. “Really, if there’s anything stupider than trash talk, it’s trash talk after you got your ass handed to you.”

                The people who will be posting at the Volokh Conspiracy after November 2020 do not approve that message.

      2. There’s zero indication Biden is a “competent technocrat”. Has he ever been in an executive role?

        1. Gaslightro makes shit up all the time. This is just par for the course.

          1. You think it’s untrue that Biden has proven to be good at the procedural aspects of policymaking? In the nearly 50 years he’s been in federal office?

            Or do you just want to call me a liar again and don’t much care what facts you need to ignore to do so?

            1. I think that it’s true that, in 50 years in federal office, he’s never held an actual executive position. Unless you count his position as Obama’s life insurance policy. He spent a couple years as a county council member, then went straight to the US Senate, where he stayed until Obama picked him for VP.

              I’m sure he’s well acquainted with the mechanics of being a Senator, after all that time. Does this translate to an executive position?

              1. Are you pretending that Trump’s business experience suggests he has some talent for executive positions?

                Because the record of bankruptcies and general incompetence indicates that he has no clue how to run anything. He seems to be limited to stiffing creditors, including the IRS, and defrauding banks.

                1. No, Bernard, you’re pretending that experience as a business executive isn’t executive experience. It’s not government executive experience, but it’s at least government executive adjacent.

                  And I consider Trump’s experience going through bankruptcy as a positive, given what the federal deficit looks like. Sooner or later we’re going to need a President who know how to do that, and you can already see Trump working to position the country to weather a default better, by working towards greater self-sufficiency. Just being an energy exporter will help once our currency is worthless.

                  1. you can already see Trump working to position the country to weather a default better, by working towards greater self-sufficiency.

                    Withdrawing from the international community does not make one self-sufficient.
                    Also not helpful: spending on nonsense and looting the treasury like Trump has been.

                    When the right inevitably turns towards debt-hawkery and austerity when a Dem gets into office, I’ll be interested if it gets any traction.

                    1. Oh, I’m sorry, did Congress not have anything to do with “looting the treasury”? In his first year, Trump actually proposed budget cuts. Congress replied by passing increases with a bipartisan, veto proof majority.

                      Would I have liked him to continue that fight? Sure. Do I understand his moving on to things where he had some chance of winning? Yes, I do.

                    2. As usual, the buck stops anywhere but Trump.

                      Trump proposed the budge; Trump spent money that wasn’t appropriated. But that doesn’t mean he’s not responsible with money!

                      Lord.

                    3. ” Trump spent money that wasn’t appropriated.”

                      No, he didn’t. He redirected money that had been appropriated, under statutory authority Congress had stupidly given Presidents.

                      Look, would I like it if Trump were more insistent about balancing the budget? Sure.

                      But if he were, he’d be absolutely doomed this November, not merely the underdog. Democracy breaks once deficit spending becomes acceptable. The guy who’s willing to borrow tomorrow’s money to buy today’s votes always outbids the guy who isn’t. So anyone willing to be serious about deficits ends up doing so from out of power.

                      Look at Biden’s spending proposals. He’s not the fiscally responsible candidate in this race, there ISN’T one.

                      Note that Biden’s proposals only score as good as they do if you assume everything goes according to plan for the next 30 years. The deficit explodes up front.

                    4. But if he were, he’d be absolutely doomed this November, not merely the underdog. Democracy breaks once deficit spending becomes acceptable. The guy who’s willing to borrow tomorrow’s money to buy today’s votes always outbids the guy who isn’t. So anyone willing to be serious about deficits ends up doing so from out of power.

                      Except that Bill Clinton took over when $200+ billion deficits were the norm, got re-elected after cutting those in half by 1996, then proceeded to a balanced budget for the first time in decades and left office with a sky high approval rating.

                      Similarly, Obama took over a trillion dollar deficit and, by 2016, deficits were cut in half and Obama left with a high approval rating and likely could have gotten re-elected.

                      In other words, the last two Democratic administrations substantially improved the deficit situation and didn’t appear to pay a price for it. If Republican voters would actually vote on the deficit instead of just assuming, as you do, that “both sides are equally awful” or, worse, “our guy HAS to outspend/borrow their guy to win elections”, then real progress could be made. But Trump runs trillion dollar deficits in “The Best Economy Ever” ™ and Republican voters don’t even hesitate to actually encourage him to up the ante even further.

                      You have to start understanding: Democratic presidential candidates propose a lot of spending programs, but generally deliver fiscal sanity. Republican presidential candidates promise balanced budgets, but deliver borrow and spend far above anything Democrats even dream of. You can keep voting on promises, or you can vote on performance. On performance, Trump obviously failed. He recklessly pushed our debt over 100% of GDP while the economy was still good. Now we are well and truly fucked.

                  2. And I consider Trump’s experience going through bankruptcy as a positive, given what the federal deficit looks like.

                    You do realize what Trump did to the budget in his first three years during the “Greatest Economy Ever” ™, right? And his fourth year is gonna be a doozy. Trump will have done in four years what no one else was able to achieve in eight years.

                    Given the facts, Trump’s experience with bankruptcy appears to be a highly relevant consideration in 2016…i.e., he tends to run the things he is in charge of into the ground, but manages to benefit personally. He did it again. And you are holding this up as a reasonable to vote for him in 2020?

                    Will the madness please stop.

            2. 1. I’ve been in government helping to run this country for half a century.

              2. This government is terrible and structurally broken and this country is racist and terrible and also broken. Elect me to government and I’ll fix it!

              1. Why is it that Trumpkins (besides the obvious fact that they take after their Dear Leader) have such an inability to understand the difference between the executive and legislative role?

                (Also, politicians run the government, not the country, though that’s really tangential to the point.)

            3. Show your reciepts dude.

                1. So no support for your claims, just a bold assertion that must be true because you said it?

                  Not gonna work Gaslightro.

      3. “…and is unlikely to screw that up.”

        Yep. The Biden Crime Bill of 1994 fills us with confidence that he doesn’t make mistakes.

        1. Don’t mix up procedure with substance.

          1. Wait, you think, “He’ll do stupid and destructive things, in a procedurally sound way!” is a defense?

            1. I think I’m not talking about substance *at all* and it’s telling how bad some of you guys want to bring it up.

              1. Yes, that’s the problem, you’re not talking about substance. But competence is only a good thing if you’re trying to do the right thing, if you’re trying to do the wrong thing it makes your wrongness more effective.

                If I’m going to have a President pushing the Green New Deal, (And, yes, Biden is supporting it.) then I want him to screw up and lose court challenges.

                1. That’s dumb as hell, Brett. You can talk about procedure independently of substance. I have also been known to talk about substance.

                  Look at the original post I was replying to – it was implying Trump’s stuff gets struck down arbitrarily by the SCOTUS. I explained that it was about screwing up procedure, and Biden is less likely to do that. It started as a procedural discussion and the Green New Deal is irrelevant, FFS.

                  You really want to change the subject to talk about what you’re angry about, except you have and will have plenty of times to talk about all of that so cool your jets.

                  1. Yes, you can talk about procedure independently of substance. You can discuss who was better at tactics, Patton or Rommel. Though earlier this summer I was seeing a lot of pushback on that…

                    But the difference is that, from the Allies’ standpoint, being good at tactics is a point in Patton’s favor, and a point against Rommel. You WANT Rommel to suck at tactics.

                    Being good at procedure is a good thing in somebody who’s trying to do the right thing, and a bad thing in somebody who’s trying to do the wrong thing.

                    I agree that Trump has a tendency to think government is as procedurally straightforward as business, and that’s a mistake. Biden has many years experience in government.

                    Biden is better at how to accomplish things, (In government!) he’s worse at what to accomplish.

                    But that’s not all we’re seeing, I think. Trump gets held to the rules more than somebody else would.

                    1. Brett, the original post I responded to was about the SCOTUS. The SCOTUS decision at issue looks at whether the Admin followed the law – i.e. the procedures. It does not look at the actual outcomes, so I don’t discuss them.

                      Do you want the SCOTUS to look at outcomes? Because that’s what it sounds like.

                    2. No, but I do want the Supreme court to treat the Trump administration the same way they would any other administration. I don’t think the courts are giving this administration as much slack as they would another.

                    3. They do. Trump appoints todies who are not into following procedures.

                      The Court, and I, believe that matters.

                      Meanwhile, you’re off whinging about irrelevancies like the GND is what we should *really* be discussing.
                      And now you’ve switched to arguing the Court wasn’t ruling on procedure, but covering up a ruling about about substance. And your support for that is…just your opinion.

                      You’re all over the map on your theses and arguments here. Does procedure matter? Get it together and make a cogent argument.

                    4. Yeah, how much procedure did Obama follow with his amnesty for the “Dreamers”? Diddly squat, but Trump needs to dot every ‘i’ and cross every ‘t’ to stop it?

                    5. Brett, it is very foolish to argue that Obama put out an EO on DACA t hat did not go through both policy and legal review.
                      https://en.wikipedia.org/wiki/Deferred_Action_for_Childhood_Arrivals

                      That’s not a thing Trump does.

                      You’re really not doing well if you’re having to throw nonsense out there to shore up your argument. Take the L.

  2. This dude is trying to overrule the SCOTUS.

    Yikes

    1. its okay, its only for THIS president so it doesnt really count

  3. This is a bit of an odd ruling. Here’s why.

    The District court says that Trump could ban all immigrants, based on foreign relations grounds. But Trump can’t ban all immigrants based on domestic grounds. They specify domestic economic concerns here. But since the court says Trump could only ban immigrants based on foreign policy concerns, that implies domestic concerns are not included.

    Yet, one of the first things Trump did was ban non-citizen immigration during the COVID crisis in order to limit the spread in the United States. Limiting COVID infections in the US would be a domestic concern. According to the judge’s reasoning, this would not be within Trump’s power. Trump couldn’t “legally” close the border, due to epidemic concerns, as the epidemic spreading within the US is a “domestic” concern.

    Is that correct?

  4. Another bad day for our vestigial bigots.

  5. Immigration has nothing to do with rules of conduct. The principals Gorsuch and others describing have to with concepts of due process which simply do not apply here. Congress has long delegated entire powers on foreign policy to the executive. It delegated its complete power to repel invasions shortly after the republic was founded. As commander in chief, the executive is subject to no rules in deciding which cities to bomb and which to spare.

    Congress need not give the executive the discretion it has given on matters of immigration. But it can.

    There is no more need for immigration decisions to be conducted based on principals Professor Somin might think just than there is for abortion decisions. Rather, in both cases, unfettered freedom of choice is permitted by the constitution. Indeed, the Supreme Court has said the constitution requires it — that unfettered freedom of choice is implicit in the very concept of autonomy, in being sovereign over ones territory. Congress has no obligation to hinder freedom of choice by constructing rules impeding choice.

  6. Bush appointee sides with Chamber of Commerce? Shocking.

    The judge wanted to substitute his national security judgment for the executive branch’s, but that would fly in the face of Trump v. Hawaii, so he had to find another rationale. But has the Supreme Court invoked the nondelegation doctrine in 100 years? Good luck hanging your decision on that.

    1. This has crap to do with national security.

      1. Open borders during a pandemic has no national security implications?

        1. Look up what open borders means. Because we don’t have that right now.

      2. The law gives the President the power to block the entry of any alien deemed “detrimental to the interests of the United States.” This was upheld in Trump v. Hawaii. The judge’s attempt to distinguish economic and security interests is atextual and unconvincing.

  7. In repeatedly disagreeing with Professor Somin on these matters, I am not disagreeing with all of his sentiments. He may well be right that Congress has delegated far too much discretion to the President, on inmigration and perhaps others as well.

    In repeatedly comparing immigration with abortion, it is not my intention to advocate treating prospective immigrants like Gloria Steinem’s appendix, nor to advocate wantonly killing or torturing them. Rather, my intention is the opposite. This nation, and its constitution, have long recognized classes of human beings who do not have the protection of the constitution, yet are subject to moral considerations and are not to be treated like mere pieces of meat as a consequence.

    This fact is the basis for what I think is a key flaw im Roe v. Wade’s argument, a binary conception of constitutional personhood by which human beings are either full persons or effectively sacks of meat, and nothing in between: Either the constitution requires protecting then, or their protection is mere religious prudery and an intrusion on the rigbts of Americans.

    Prospective immigrants, and foreigners generally, lie in between.

    I accept the basic holding of Roe, which merely repeats the logic of Eisentrager, that the bill of rights does not apply to both. But I reject the idea that this means that whenever there is a conflict between their interests, and indeed their lives, and the rights of Americans, the lives of Americans must prevail.

    If Roe v. Wade were a real precedent, courts ought to be striking down laws that prohibit harvesting foreigners’ organs, or for that matter using them as sex toys.

    Let’s look at organ harvesting. The idea that Anericans can be required to die, when a plentiful supply of transplant organs is readily available for harvesting, for no other reason than the moral concept that all life has value, would seem utterly inconsistent with everything Roe stands for.

    Roe stands for the idea that the concept of constitutional personhood and its consequences is to be applied fiercely, relentlessly, ruthlessly, beyond where any concept of conventional morality to take it. Yet the Supreme court – I personally think for excellent reasons – has been utterly unwilling to really take its rational seriously, and to apply it to foreigners with anything like the ruthless relentlessness that it has been applied in the abortion context.

    The Court, and Americans, have hangups about torturing and killing foreigners. This is to their credit. And thiz, I think, disproves Roe’s logic. Nobody wants to follow Roe the minute it departs from their own moral beliefs.

    Roe was an attempt to root abortion in Constitutional text. Perhaps no more rooting is needed. Perhaps the court should simply declare abortion a rigbt on its own say-so with no pretense of adjudicating anything in the constitution. Perhaps nobody actually believes Roe’s logic, it may all have been nothin more than window dressing.

    But a Court at liberty to decide who is a person and who is not on nothing but its own say so is far more dangerous than a court that at least pretends to regard such an unfettered discretion as beyond its powers, and at least pretends to regard such matters as needing to be rooted, or at least perceived to be rooted, in constitutional text.

  8. I hope in President Trump’s next term he chooses to ignore these activist judges.

    1. How Constitutional of you.

      And here I thought you were part of the law and order party.

    2. That’s certainly one of the options. There are others as well.

  9. The decision is almost incoherent, at least this part is:
    “Congress’ delegation of authority in the immigration context under Section 1182(f) does not afford the President unbridled authority to set domestic policy regarding employment of nonimmigrant foreigners. Such a finding would render the President’s Article II [foreign relations] powers all but superfluous…”

    If the President already has an enormous amount of power directing foreign relations, then congress buttressing that power with additional delegated power does not make his Article Ii power superfluous, it enhances his Art. II power.

    In Jackson’s Youngstown concurrence he points out that when the President acts with the express authorization of Congress then the President’s power is at its highest. He has all his own power and the additional power delegated by congress.

    Now congress may well not be able to delegate such unrestricted power to the president, but it in no way makes the president’s own inherent powers superfluous.

  10. The better way to distinguish Trump v. Hawaii is to simply point out that the Supreme Court’s ruling in that case simply did not consider nondelegation issues.

    Not quite sure I follow this. I take this to be saying that even if we cannot distinguish Case Y from Case X on the facts, the lower court addressing Case Y is not bound by the precedent set by the higher court in Case X, if the lower court feels there is some legal argument that the higher court failed to consider in Case X.

    Is this how precedent works ?

    1. Only if Ilya doesn’t like the precedent, I suspect.

    2. Is this how precedent works?

      Essentially. If SCOTUS rules that the Good Patriotic Things Act of 2021 does not violate the 1st Amendment, then all lower courts are required to conclude that it does not violate the 1st Amendment. It does not, however, preclude someone else from bringing a successful lawsuit contending that the Good Patriotic Things Act of 2021 violates the 3rd amendment.

  11. Trump wants to exclude foreign workers because they might spread the COVID virus.

    Ha ha ha ha ha ha ha ha

  12. The court concludes that the ban is illegal in large part because the broad authority claimed by the president violates the nondelegation doctrine.

    Well, hope springs eternal, but more likely a case of fair weather friends.

  13. Interesting that the 40th Congress believed no delegation over internal state immigration was delegated to National Govt.

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