The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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. In that ruling, a 5-4 majority rejected both the argument that the travel ban was unconstitutional because motivated by Trump's anti-Muslim animus, and the argument that it violated federal law forbidding discrimination on the basis of nationality in immigration visas.
While I think these holdings were terrible mistakes, I agree it is unlikely that the conservative majority on the Supreme Court will overrule or cut back on Trump v. Hawaii in the near future. But it doesn't follow there is no plausible way to challenge the expanded travel ban in court. To the contrary, both 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.
Both the travel ban at issue in Trump v. Hawaii and the new expansion thereof rely on 8 USC Section 1182(f), which gives him the power to bar entry into the US by any foreign national whom he deems to "detrimental to the interests of the United States." Here's the full text:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
In Trump v. Hawaii, Chief Justice John Roberts' opinion for the court interprets this language as giving the president unconstrained power to exclude any aliens he wants for any reason, so long as he finds that their entry would be "detrimental to the interests of the United States":
By its terms, §1182(f) exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry ("[w]henever [he] finds that the entry" of aliens "would be detrimental" to the national interest); whose entry to suspend ("all aliens or any class of aliens"); for how long ("for such period as he shall deem necessary"); and on what conditions ("any restrictions he may deem to be appropriate")…..
The Proclamation falls well within this comprehensive delegation. The sole prerequisite set forth in §1182(f) is that the President "find[ ]" that the entry of the covered aliens "would be detrimental to the interests of the United States."
I would add that Section 1182(f), as interpreted by the Court, does not limit what qualifies as an "interest" justifying an entry ban, and does not require the government to provide any evidence that a travel ban would actually advance that interest. Indeed, in Trump v. Hawaii, the Court accepted a highly dubious national security rationale without any meaningful scrutiny.
The Court also (wrongly in my view) rejected claims that the scope of discretion granted by Section 1182(f) was narrowed by later federal laws barring nationality discrimination in the issuance of immigration visas. The analysis here relies on what seems to me a specious distinction between visas and the right to enter the United States, ignoring the fact that securing the latter is the whole point of acquiring the former. But, regardless, this virtually unconstrained view of Section 1182(f) was adopted by the Supreme Court.
Josh Blackman, a leading academic defender of the Trump v. Hawaii ruling, suggests that the Court's interpretation of Section 1182 gives the president the power to effectively eliminate entire categories of immigration visas authorized by Congress, simply by denying their recipients entry into the United States. If he's wrong about that, it's not immediately clear why.
As already indicated, the nondelegation issue was not addressed by the Court Trump v. Hawaii, [update: and barely even mentioned in the plaintiffs' brief]. Indeed, the word "nondelegation" doesn't even appear in any of the five opinions written by different justices in the case (the majority, two concurrences, and two dissents).
A likely reason for this omission is that few then thought that a revival of nondelegation constraints was a realistic possibility. Things are different, however, after last year's ruling in Gundy v. United States, where Justice Neil Gorsuch authored an opinion on behalf of three conservative justices arguing for just that. A fourth conservative justice—Samuel Alito, did not join Gorsuch's dissent, but did indicate in a concurring opinion that he is open to strengthening nondelegation doctrine in future cases. Justice Brett Kavanaugh did not participate in Gundy, because it was argued during the period when his nomination to the Court was held up in the Senate due to accusations of sexual assault. But conventional wisdom among legal commentators is that he too might well be sympathetic to the ideas laid out by Gorsuch.
On Gorsuch's reasoning, which he backs with extensive Founding-era evidence, "the framers understood [the legislative power] to mean the power to adopt generally applicable rules of conduct governing future actions by private persons." Only Congress has the authority to do that. As interpreted in Trump v. Hawaii, Section 1182(f) gives the president the power to do just that: he can adopt virtually any "generally applicable" rules he wants restricting the entry of non-citizens into the US. And, in the process, of course, he also enacts rules restricting the liberty of US citizens who want to form business, educational, and other types of contacts with these potential immigrants.
Elsewhere in his opinion, Gorsuch suggests that Congress can still "authorize executive branch officials to fill in even a large number of details, to find facts that trigger the generally applicable rule of conduct specified in a statute, or to exercise non-legislative powers." But Section 1182(f), as interpreted in Trump v . Hawaii, clearly goes beyond that. It does not merely give the president the power to "fill in details" or find specific facts that "trigger" a "generally applicable rule" enacted by Congress. Instead, the president himself can make the rules simply by making assertions about what is in the national "interest," and there is no requirement that he provide any specific type of factual evidence to back those assertions.
It is pretty obvious that the currently dominant interpretation of Section 1182(f) violates Gorsuch's definition of nondelegation. But it is so sweeping that it likely also violates the more permissive approach adopted by Justice Elena Kagan in her plurality opinion on behalf of the four liberal justices.
In that opinion, Kagan attaches some very modest, but potentially real teeth to the "intelligible principle" standard that previously governed nondelegation cases, and had been thought to impose almost no constraint on grants of discretionary power to the executive. She recognizes that "we would face a nondelegation question" if the statute challenged in that case gave the president "'unguided' and 'unchecked' authority" to decide which sex offenders should face criminal penalties for failing to sign up for a national registry under Sex Offender Registration Notification Act (SORNA). But she—and the other liberals—concluded that there was no such problem with the relevant provision of SORNA because "[t]he text, considered alongside its context, purpose, and history, makes clear that the Attorney General's discretion extends only to considering and addressing feasibility issues."
In my view, this approach is still too permissive, and—for reasons well-articulated by Gorsuch—it is probably based on a flawed interpretation of SORNA. Regardless, the Court's interpretation of Section 1182(f) violates Kagan's standards. Under that approach, the president is indeed give "unguided and unchecked" authority to exclude whatever aliens he wants, for almost any reason he wants, and his discretionary power certainly is not limited to determinations of "feasibility" or any other specific factual issue. Indeed, it's hard to conceived of a broader delegation of power than one that gives the president the power to determine the legality of a huge swathe of private conduct solely based on his unsupported assertion that restrictions are in the "national interest," without any limitations on what qualifies as such an interest. That kind of delegation flunks both Gorsuch's test and Kagan's.
Some argue that nondelegation rules should be stricter in cases where criminal penalties are at issue. If so, 1182(f) qualifies. Illegal entry into the United States is a federal crime (albeit only a misdemeanor for a first time offense). Presidential power under Section 1182(f) includes the authority to criminalize entry by large categories of foreign citizens whose entry would otherwise be legal. In his dissent in Gundy, Justice Gorsuch correctly notes that the challenged provision of SORNA "hand[s] off to the nation's chief prosecutor the power to write his own criminal code." At least as interpreted in Trump v. Hawaii, Section 1182(f) hands off to the president the power to write his own immigration code, which also happens to include criminal penalties.
In sum, if Trump v. Hawaii's interpretation of Section 1182(f) is correct, then Section 1182(f) is an unconstitutional delegation. At the very least, it suggests that a nondelegation challenge to Trump's travel bans is worth trying. And, as noted above, both the earlier and expanded versions of the travel ban depend on presidential power under Section 1182(f). If it gets invalidated, all or most of the travel ban policy falls with it.
Faced with a strong nondelegation challenge, the courts could choose to give Section 1182(f) a narrower interpretation rather than striking it down outright. If so, that would likely still be a victory for opponents of the travel ban, as it is unlikely the statute can be narrowed significantly without jeopardizing at least some large parts of the travel ban. Such a ruling could also set a valuable precedent for future nondelegation cases.
Striking down or limiting Section 1182(f) would not require the Court to undertake the difficult task of developing a comprehensive theory of nondelegation. It would be enough to say that giving the president virtually boundless discretion to bar entry into the United States is a bridge too far.
I do not claim that this nondelegation argument guarantees victory. Any constitutional principle that hasn't been meaningfully enforced for a long time rests on somewhat shaky ground unless and until the courts show they are serious about it. There is the possibility that a majority of the justices aren't really serious about enforcing nondelegation.
It is also possible one or more conservative justices will decide that immigration policy is an exception to nondelegation, just as it has been previously held to be an exception to many constitutional individual rights that constrain other federal powers. If that happens, the loss of conservative votes could potentially be offset by liberal justices willing to meaningfully enforce the strictures in the Kagan opinion. But, we cannot know for certain that the latter mean what they say until it comes to the crunch and they actually strike down a law for violating these rules.
That said, both conservative judges and liberal ones have some real incentives to enforce nondelegation here. For the conservatives, carving out exceptions to nondelegation in policy areas where it seems convenient for conservative ends is almost guaranteed to ensure that liberals will never recognize nondelegation as a meaningful, neutral constraint on executive power. And a legal doctrine supported by only one side of the political spectrum is unlikely to prosper for long. By contrast, using nondelegation to strike down a law favored by conservatives would send a strong signal in the opposite direction: that nondelegation isn't "just for conservatives."
For their part, liberals may potentially be willing to reconsider unconstrained delegation in an era where that power is likely to be wielded, at least some of the time, by Republican presidents hostile to immigration, and to some of the racial, ethnic, and other groups whom liberals see as most in need of protection against government power. Such considerations have led many liberals to relax their previous opposition to judicial enforcement of constitutional federalism, and indeed to rely heavily on federalism principles in numerous successful challenges to the Trump administration's policies targeting sanctuary cities. Perhaps nondelegation will follow a similar trajectory. At the very least, it's a possibility worth taking seriously.
UPDATE: Josh Blackman reminds me that he wrote about nondelegation and travel ban in this 2018 post (written before Gundy came down). I am sorry for having forgotten about it. But Josh's argument that Section 1182(f) provides an "intelligible principle" is utterly unpersuasive. If merely declaring—without evidence—that something is "detrimental" to the national interest is enough, then pretty much any delegation would be acceptable, even one that just says the president can impose criminal sanctions or regulations any time the president states that doing so would be good for the nation, or somehow beneficial to the public interest.
Josh also argues that the president has inherent power to exclude aliens, even without congressional authorization, and presumably even those Congressionally enacted laws say should be let in. I will likely have occasion to consider this argument in greater detail at a later time. For now, I will only note that this notion would require a radical restructuring of constitutional law, and that it was accepted by only one justice in the Trump v. Hawaii case (Clarence Thomas in a concurring opinion). I also refer interested readers to James Madison's classic refutation of a similar argument raised by defenders of the Alien and Sedition Acts of 1798, in his Report of 1800.
Finally, Josh notes that a concurring opinion to the 4th Circuit decision striking down Trump's Travel Ban 3.0 raised nondelegation as one of a number of reasons to interpret Section 1182(f) more narrowly than the administration wanted. I would that the Ninth Circuit ruling striking down Travel Ban 3.0 makes a similar point. But this issue was not addressed by the Supreme Court when it considered the case. And, of course, all of this occurred before Gundy made a revival of nondelegation a more realistic prospect than it had been for a long time previously.
UPDATE #2: I think I should explicitly acknowledge those who argued that previous iterations of the travel ban were unconstitutional based on nondelegation principles, such as Joshua Geltzer. It was not my intention to suggest that I am the first person to think of this idea. The much more modest contribution of this post is to explain how the nondelegation case against the travel ban is stronger after Gundy, and also how it is not foreclosed by Trump v. Hawaii. As noted above, this argument got some consideration in the lower court rulings on Travel Ban 3.0. But it nonetheless was completely ignored by the Supreme Court justices, who, as also noted above, did not even mention the term "nondelegation" in any of their opinions.