Travel Ban

A Nondelegation Challenge to Trump's Travel Bans [updated to include some additional material]

Other possible legal challenges to Trump's expanded travel ban may be precluded by the Supreme Court's ruling in Trump v. Hawaii. This one is not.


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.

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  1. I agree it iss unlikely

    Oh oh, someone’s going to think your inner Gollum has leaked out. But not me 🙂

  2. Somin’s style of argument strikes this non-lawyer as less helpful than it might be. It is convoluted and legalistic, and thus hard to take seriously as guidance for constitutional interpretation, which might work better and be clearer at a higher level of generalization.

    At the same time, I am convinced—completely without reference to the travel issue—that stricter limits on delegation need to be asserted, simply to keep government properly checked, balanced, and politically accountable. I suggest thinking about delegation this way:

    The powers congress chooses to delegate are powers the congress owns, and which the president borrows with permission. To get permission, the president needs assent, by legislation, from both houses. After that, those powers are on loan, but congress still owns them. They continue on loan only at the sufferance of the entire congress. If at any time either house of congress becomes unhappy with the way the president is using delegated powers, either house is free by a simple vote to withdraw consent, and that ends the conditional loan. That ability to withdraw the power by resolution could be included in the original legislation authorizing the delegation.

    Because the vote to withdraw the loan is not legislation, the president cannot veto it. The president can no longer exercise the previously-delegated power. Congress has it back.

    An arrangement like that would assure that use of delegated powers remained constrained by congressional will and congressional assent. It would give congress continuous power, by negotiation, to bend the president’s use of delegated power to the congressional will. Compared to present practice, that seems notably closer to the scheme of accountability by separation of powers which the constitution intended.

    1. Nice thoughts, I suppose, but completely divorced from the reality we have in the 2020 US Constitution. I’m not sure why you slam Somin for being “less helpful” when your prescription isn’t helpful at all.

      1. How does the constitutional reality diverge from my comment?

        1. Because a statute delegating powers can only be undone by a statute un-delegating them. And where a statute is required, the President can exercise a veto.

        2. The constitutional reality is the body of precedent that interprets it.

          As a great judge once said, the law is not a brooding omnipresence in the sky.

    2. “If at any time either house of congress becomes unhappy with the way the president is using delegated powers, either house is free by a simple vote to withdraw consent, and that ends the conditional loan.”

      Excellent proposal, which I fully support. Quite a lot of legislation delegates power to the executive, allowing either branch to void legislation like say the Clean Air Act, or the National Firearms Act would be a welcome improvement to our current system. After all legislation that no longer can muster majority in both houses probably is deeply unpopular in many sectors of the people.

      Unfortunately it would be unconstitutional without a major revision of Article I. Congress is free to revoke delegated power now, but both houses must assent, and the President still has his veto power should ue choose to use it.

      1. Um, nothing I wrote suggests a power of one house to repeal legislation. The legislation continues unmodified. What gets modified are the terms upon which it is carried into effect. Those become a matter for negotiation.

        But the logic of asserting that a power which constitutionally belongs to Congress can be kept away from it by presidential veto, requiring a two-house super-majority to get back? That seems peculiar.

        1. lathrop, what Kazinski did was hoist you upon your own illogical petard. He extended your reasoning and showed why it was wrong.

          I am fine with Congress re-assuming their power by doing the job they were elected to do in the first place – draft complete legislation.

        2. Well maybe our Constitution is peculiar, but it is yhe law of the land.

          Take the recent controversy over the National Emergencies Act. Congress originally said a presidentially declared Natiinal Emergency would be terminated “if each house of Congress passed a resolution terminating the emergency. After presidents objected to this “Congressional termination” provision on separation of powers grounds, and the Supreme Court in INS v. Chadha (1983) held such provisions to be an unconstitutional legislative veto, it was replaced in 1985 with termination by an enacted joint resolution. A joint resolution passed by both chambers requires presidential signature, giving the president veto power over the termination (requiring a two-thirds majority in both houses in the case of a contested termination)”

          1. Kazinski, yeah, I get all that. I think the Supreme Court got it wrong, and to see why, consider this:

            The power of the purse held by congress is universally regarded as a keystone of the American system of government. Separation of powers largely depends on it.

            How can it be that the 117th Congress could take action by legislation to delegate a chunk of the power of the purse to the President—who by using a veto would then get to keep it in defiance of the 118th Congress? I thought it was universally held that a former congress can do nothing to preclude a subsequent congress from acting with full power. But if the 118th Congress must muster two super-majorities to act, it can never be on a par with the 117th, which needed only a simple majority.

            1. But that’s not any constitutional principle. The constitutional process, just as we learned in grade school, is when Congress passes a law and the President assents then a bare majority is all Congress needed. If the President vetoed the bill, whether it’s new legislation or repealing old legislation Congress has to muster 2/3 majorities.

              You can’t really expect the Supreme court to countenance some alternative process just because Congress may change its mind down the road. The House repealed the ACA a couple of times after the GOP took over in 2010, but it was without legal effect.

              If love to see Congress limit appropriations to just 2 years, but of course they won’t, because they don’t want the next Congress to change its mind.

              1. I thought it was a constitutional principle, and a long-recognized one, that no action taken by a previous congress can impair the power of a subsequent congress. Are you saying otherwise? Why not just pass a bill saying no subsequent congress shall repeal this law?

                1. No action taken by a previous Congress can impair the power of a subsequent Congress, but Congress exercises that power via the presentiment clause; Both chambers vote through the same bill, which is then presented to the President.

                  A single chamber acting on its own has no claim to exercise that power, and so that it can’t act doesn’t constitute impairment.

                  1. What about two chambers? Why does the 118th congress need two super-majorities to do what the 117th congress can do just by sitting on its hands in two chambers?

                    1. Short answer: It doesn’t.

                      In 2019 you decide to give my $5. You could refrain just by sitting on your hands.

                      In 2020 you want to take it back. Why can’t you do in 2020 what you could have done by sitting on your hands in 2019? Answer: You can, but taking something back ISN’T the same thing as not doing it in the first place.

                    2. What about two chambers? Why does the 118th congress need two super-majorities to do what the 117th congress can do just by sitting on its hands in two chambers?

                      The rules are entirely consistent for the 117th and 118th Congress in the exercise of the legislative power. That is the power to legislate. Not the power not to legislate. Everyone has the power not to legislate. We’re talking about the power to legislate.

                      The 117th Congress required simple majorities and the President’s acquiescence to pass the law in question, or two thirds majorities. And that’s exactly what the 118th Congress requires to repeal it.

                      btw, and I make no claim to expertise here, but the chatter we have had from time to time over FISA renewal implies to me that what you wish to achieve can be achieved simply and constitutionally by setting a time limit on the application of a law, within the original legislation. In that case each House has an effective veto on the law’s renewal.

    3. Somin’s style of argument strikes this non-lawyer as less helpful than it might be. It is convoluted and legalistic, and thus hard to take seriously as guidance for constitutional interpretation, which might work better and be clearer at a higher level of generalization.

      “The doctor’s style of surgery strikes this non-doctor as less helpful than it might be. It is convoluted and overly medical, and thus hard to take seriously as guidance for operations, which might work better and be clearer at a higher level of generalization.”

      Go to law school, Stephen, or leave this to the experts.

      Seriously, the Constitution creates a common law legal system, where we reason forward from precedents. This is how the Constitution is interpreted, through an iterative process. Blabbing on the Internet about first principles might be fun, but it has nothing to do with what we are trying to do here.

      1. Well I’m going to defend Lathrop here a little bit, in that first principles are never irrelevant, and you’re never going to hear from a Justice on the Supreme Court that ‘the Constitution says x, but our precedent overrode that with y’ . On the other hand what Lathrop is arguing isn’t really first principles, but but his living Constitution version.

        1. They don’t say it, but they don’t invoke first principles either.

        2. “you’re never going to hear from a Justice on the Supreme Court that ‘the Constitution says x, but our precedent overrode that with y’ .”

          No, they’ll claim that x is impossibly vague, and so doesn’t really say x, but instead y.

  3. “Because the vote to withdraw the loan is not legislation, the president cannot veto it. The president can no longer exercise the previously-delegated power. Congress has it back.”

    I wish this were true, but short of a constitutional amendment it’s not how it is. See Trump’s veto of the attempt to prune back the 2002 AUMF – only took a majority of both houses to give the POTUS warmaking power but it apparently needs a veto-proof 2/3 of both houses to take it back.

    In the mean time, the answer is to put a time limit on each and every delegation of power to the executive branch. It might even be worth it to (for example) give Trump *expanded* AUMF and immigration authorities, superseding the existing ones, just to slip the deadlines in there as a Trojan Horse.

    1. I see no constitutional difference between adding to the original legislation a time limit, or adding a condition of ongoing congressional assent. Seems like if either one of them is in the original law, the president has the right to veto that law when it is presented, but not afterward, when he has accepted its conditions. If the law the president signed says congress can reclaim the delegated power without further legislation, what can the president veto?

      1. The time limit doesn’t represent a new decision, it is a decision of the legislature that enacted the law. A resolution passed by one chamber, OTOH, represents a new exercise of discretion. And what the legislature as a whole does, a part can’t later decide to undo.

        I agree the reasoning could have gone the way you suggest. But the matter has already been litigated.

    2. They always can withdraw consent with a simple majority by refusing to fund things. That is congresses enforcement mechanism.

      1. Allutz, not if what they are trying to withdraw consent about is the question of discretion over what the nation spends its money on—the power of the purse. And that seems to be what the claim is now, that Congress delegated a chunk of the power of the purse, and the Executive gets to keep that power unless Congress can muster two super-majorities.

        Note also, if the Executive retains discretion on how to spend the federal budget, no amount of budget reduction by Congress can be expected to deliver a practical way to rein that in. Long before any political crisis is felt at the Executive level, the Executive will choose to starve accounts which are politically indispensable in Congress, to force an end to the pressure: Don’t like my spending military funds on the border wall? Let’s see how you like it when I suspend Social Security checks instead.

        What that suggests to me is that the Supreme Court must find that it is imperative that the veto power not extend so far as to impair the fundamental powers of congress, nor to impair the ability of any congress to use those powers on a par with its predecessors.

  4. Shorter Somin: Waaah! I am not happy. Orange Man Bad.

    1. Shorter TDS: Waaah! Someone doesn’t like Trump!

      Whether you agree or disagree with this, it is an attempt to legally undo something Trump has done. Since when has that been worth nothing more than a content-less comment?

      1. Because it was a bogus argument. The law gives the executive (no matter who it is) the power to enforce the immigration laws.

        If you want a different policy, change the law by legislative prerogative, not through the courts. The executive is charged with enforcing the laws.

        1. That completely begs the question of whether “the law” can delegate that much legislative power to the president. Your comment seems to miss the entire point of the post.

        2. The argument concerns the non-delegation doctrine, which says that laws that give too much legislative power to the President is unconstitutional.

      2. Oh yes, TDS applies to those who hate Trump

  5. The quest to make up new double standard rules that never applied to any other President or Administration continues.

    A more honest look at things would reveal that making up rules and attempting to apply them selectively is a lot more destructive to US Constitutional order than any actions by the Trump Administration. But honesty is in short supply among self-styled ruling class types these days.— even more than usual.

    1. This particular type of non-delegation hasn’t applied to any other president, since its source, Gundy, was written by someone this president put on the court.

    2. I’d like to see the courts strip back power from the executive, as long as it is a permanent revocation of power and not just Trump rules. Of course a lot of this delegated power is only nominally wielded by the President, but is actually deployed by the derp state (sic: fantastic typo, so I’ll keep it).

      The only drawback I see is I am not confident in Congress or most of the States wielding a lot of those powers either.

  6. I would love to see a revival of non-delegation doctrine, and I certainly believe you’re honest in wanting that.

    But you’re just dreaming here, non-delegation doctrine is about as dead as it gets.

    And, realistically, even if one or two of the liberal Justices joined with the conservative Justices to bring it about in this specific context, as soon as a non-Trump context arrived, they’d change their minds.

    Seriously, let’s stop relying on the courts to restore the Constitution. They’re not going to do it, the people who select and confirm their members don’t want that, and are very careful to craft a judiciary that won’t do that.

    It’s time to have a constitutional convention. Not just if we want the existing written Constitution back. If we want any sort of written constitution to prevail. Not just substantive amendments are needed. We need structural amendments, to address how the judiciary were suborned to undo the Constitution’s constraints.

    We need a new Constitution. Not because the existing Constitution is bad, it isn’t. But because all the circumventions and exploits are already known, and without those structural changes to address why the Court set out to undo the Constitution’s bonds, they’d just do so again, even faster the next time.

    1. Brett, that is such a bad idea. In our current divisive political environment where we have 40% of the populace rooting for a socialist to win the last thing we would want to do is give them the opportunity that with a burst of hyper actvisim the could actually sieze the levers of power, with all the checks and balances removed.
      If the divide was 60-40 it would be risky, but the divide is actually 45 committed capitalist, 25 committed socialists, 20% both sides have good points, 10% Don’t Know. I don’t like those odds.

      1. The point is, all the checks and balances are, for practical purposes, already gone, because the way to circumvent them is already known.

        You pack the Supreme Court, and it says the Constitution means whatever you want it to mean, with no opportunity for the states to reject the changes.

        What we’ve seen since the 1930’s has been a slow motion Court packing, Justice by Justice, enabling the cancerous growth of the federal government. All because the 17th amendment removed the Senators’ last incentive to care about the balance of power between states and the federal government.

        But, based on statements by various figures within the Democratic party, I think they no longer have the patience for the long game, and when they next have a bare majority of both chambers of Congress, and a cooperative President, they’ll do their Court packing the quick way: Expanding the Supreme court to 15 members, and making it a rubber stamp.

        The only way to take Court packing off the table is a constitutional amendment. An amendment Congress will NOT originate, because the Democrats don’t want fast Court packing off the table, and neither party wants slow Court packing ended.

        Thus a Constitutional convention is needed.

        I agree that it’s risky. But the point is that inaction isn’t any less risky. The Supreme court IS going to become a rubber stamp, sooner or later, and likely sooner than we think. The left is done with playing the long game, they’re looking for the quick victory now.

        1. It would be a runaway convention….just like the last time. To risky.

        2. Brett, today’s nation would not make it out of a constitutional convention in one piece. Maybe that would be better.

          You want the big blue states to go to a convention where they can demand as a condition of cooperation and ratification an end to the outsized influence of per-state voting in national affairs? Think that over. If that happens, your red states are either going to back down, or find themselves in a new, much smaller, much poorer nation.

          Blue states are fed up with minority rule, and they are not going to re-up for more of the same. Why would they?

          Whatever claim to legitimacy you think you have for your resentments about liberal court packing schemes, that all goes away when the gavel falls to open the convention. At that moment, every idea becomes as legitimate as the next. What actually happens becomes a test of what most conveniently distributes the political powers (or other powers) which may be brought to bear.

          Maybe it would be wiser if you tried to get accustomed to the notion of majority rule.

          1. I don’t think the ‘blue’ states have that much leverage in the event of a convention. Voting in the convention is majority vote, with each state getting one vote. The ‘red’ states would pretty heavily dominate the convention, no amendments would originate from it without their agreement, and they could probably steamroller the ‘blue’ states on anything they were in agreement on.

            Things would be dicier on the ratification end, that’s where the ‘blue’ states would have some leverage. While the Republicans have the advantage there, too, it’s not large enough to get anything ratified without prevailing in at least a few states Democrats control.

            The key point, though, is that the convention represents state level politics, not federal level politics. Thus giving a big leg up to proposals designed to transfer power back to the states.

            1. Brett, how the hell do you know voting in the convention would be one-state-one-vote? What if the first time the voting standard comes up, the blue states say, “Voting this time is going to be by aggregate population, and if that does not happen, here is the list of states which will hold their own convention?” And the list includes CA, NY, TX, IL, FL, MN, WI, MI, plus others, totaling 27 states in all?

              I don’t think the division on that one would be along current red/blue lines, nor strictly on large-state/small-state lines. What would be looming would be the possibility of dividing the nation, and some red states would be trying figure whether they would prefer being caged up in the old confederacy, or stuck out on the great plains, or instead to go with a new nation encompassing most of the population and most of the money from the old one. A desire for contiguity would figure in.

              You might find even small, deep-red Utah and Idaho preferring to stay with the big states—partly because Nevada would surely go with California, and Idaho, Nevada, Utah, and Colorado would complete a contiguous belt of Rocky Mountain states which share commercial interests with the larger states (tourism, ski industry, extractive industries with big-state markets). And if that Rocky Mountain belt formed up, AZ and NM (neither of which is very red anymore) would logically slot right in between CA and TX to expand a contiguous western bloc.

              Delaware is not going to secede with South Carolina, just because Delaware is a small state. Nor would Rhode Island. Nor, I think, would Iowa, Indiana, or Ohio do it just because they have recently been red states. But maybe those three could go either way.

              Get out the map and look at it. Your most likely candidates to resist a blue-state/large-state demand for a per-population voting rule would be: the great plains, plus maybe AK, WV, MO, KY, TN, AR, MS, AL, NC, SC. If it looked like the price of insisting on one-state-one-vote were to find yourself in a new nation based on that list, how do you think the vote would come out?

              1. “Brett, how the hell do you know voting in the convention would be one-state-one-vote? ”

                Because that’s the precedent from the first constitutional convention.

                Because one vote per entity is the default rule, and the entities here are states.

                Because the ‘red’ states have their majority, and so could proceed using that rule, and still have a quorum to do business if the ‘blue’ states walked out. Just as the original constitutional convention continued after NY walked out.

                And because, yes, I think the voting would break down along ‘red/blue’ lines. Partisan polarization isn’t going to vanish just because we hold a constitutional convention.

                “What would be looming would be the possibility of dividing the nation”

                How’s that? All the convention can do is originate amendments to be voted on by the states. Are the ‘blue’ states going to threaten to originate an amendment calling for the country to be broken up, and threaten to get 38 states to ratify it? How is this a plausible threat?

                The convention doesn’t help them secede, so it doesn’t make the threat to secede viable, if it isn’t already viable now.

                Apropos of nothing, I’d like to note that I find the media’s decision to settle on ‘red’=Republican, ‘blue’=Democrat, after years of alternating between elections, rather annoying. Just because they disliked the red/commie jokes was no good reason to do it.

                1. Brett, you have misread the precedent. The precedent is that the convention decides.

                  And you are full of beans on what a convention is. Nothing at all limits what a constitutional convention can do. There is no constraint—not by precedent, and not by any higher power—to prevent a constitutional convention from doing at pleasure whatever it chooses to do.

          2. “Majority rule”

            What majority? You keep saying “Majority rule” without actually having a majority.

            You had what, 28% of eligible voters vote for Hillary? That’s not a majority. You had 48.2% of votes cast for Hillary. Still not a majority. It was slightly more than the votes cast for Trump, but neither was a majority.

            Look at the plus side. Maybe Bloomberg can buy the nomination and election for you.

            1. 2016 was an outlier on many different fronts, but if you look at trends over time, there is a majority for blue ideas, and for Democrats winning far more elections than they actually do. Democrats have won the popular vote in 6 of the last 7 elections. The Senate stays red because Wyoming gets to cancel California. The House is more red than it should be thanks to gerrymandered seats. All of that is before we get to polling data that indicates majority support for single payer health care. Yup, the blue states are subject to the tyranny of the minority.

            2. Armchair, throughout the country there is a large majority for getting rid of the electoral college. Its will is blocked by per-state voting requirements for approving amendments, which on that question fasten the rule of a smallish minority on the nation. What is the point of pretending you do not understand that?

    2. It’s time to have a constitutional convention.

      Um, no. The prospects for mischief are simply too great. How about we use the constitution we have, and follow those rules. 🙂

      1. The problem is, you don’t have a constitution.

    3. Everyone’s saying a constitutional convention is too risky because the side you disagree with might win and seize the levers of power.

      But that’s incorrect, because in a divisive political environment, the only terms on which a convention could succeed is this: agreeing to disagree.

      People from Alabama don’t get a say in whether California adopts more socialism, bans guns, and puts men in the girls’ bathroom. People from California don’t get a say in whether Alabama bans abortion, allows prayer in school, or serves french fries and pizza in the school cafeteria. Agree to disagree. Self-government.

      I’d be far more worried about the results of a convention in a political environment that was not divisive. In the context of reevaluating U.S. government structure from square one, divisiveness on these substantive issues is a positive thing and makes a win-win is cognizable.
      “Is it to be supposed that one National Government will suit so extensive a country, embracing so many climates, and containing inhabitants so very different in manners, habits, and customs? It is ascertained by history, that there never was a Government, over a very extensive country, without destroying the liberties of the people: History also, supported by the opinions of the best writers, shew us, that monarchy may suit a large territory, and despotic Governments ever so extensive t a country; but that popular Governments can only exist in small territories —Is there a single example, on the face of the earth, to support a contrary opinion?”

      George Mason

      “This Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.” James Madison, Virginia Resolution

  7. I suspect that the “liberal” Justices, actually faced with setting binding precedent on this matter, would decline to rein in the Executive because they are ever hopeful that Trump is an anomaly and also believe that others that don’t share their political views are an endangered species.

    They likely would think of programs such as DACA and ask themselves what its fate might have been under an interpretation of the nondelegation clause that would invalidate the “Travel Bans” on those grounds. At least in the “Travel Ban” case Congress explicitly granted the power in fairly clear text. In the case of DACA, as I recall, it’s quite a stretch to find text indicating Congress granted the power for the Executive to create a formal program whose intent was to subvert Congress’ intent.

    Since most Presidents (except, perhaps, a Libertarian) would be loath to cede power voluntarily, a power once granted to the Executive by a bare majority of Congress is difficult to rescind without a 2/3 majority in both houses. This creates a “ratchet effect” with ever more power shifting to the Executive over time and it seems only the Supreme Court is likely to be able to rein this in.

    1. The ‘liberal’ justices recognize that there’s no such thing as binding precedent, because there’s nobody above them to force them to follow precedent. “Precedent” is just a club they use on the conservatives to stop them from taking victories they’ve got the votes to win.

      1. The liberal justices probably do think that, but so do the conservatives. If Roe v. Wade is overturned, it will be because conservatives have no more respect for precedent than liberals do.

        1. Bad precedent makes a bad foundation for law. And Roe v Wade is just an abortion of a decision, its balancing interests based on trimester can’t be tied back to any cognizant constitutional principal:
          “during the first trimester, governments could not prohibit abortions at all; during the second trimester, governments could require reasonable health regulations; during the third trimester, abortions could be prohibited entirely so long as the laws contained exceptions for cases when they were necessary to save the life or health of the mother.”

          Most progressives only support just the broad proposition that abortion is legalized, but they’d completely rewrite it they could because like most judicial legislation its wandering, contradictory, and unprincipled. But the main objective was achieved and they like the result.

          1. I’m one of those liberals who agrees with Roe’s bottom line while disagreeing with most of its rationale. Part of the issue with the rationale is that we know significantly more about the science of pregnancy now than we did in 1973.

            All that aside, however, if Roe is overturned, it will be the holding that gets overturned, not the rationale (except as is incidentally necessary to overturn the bottom line holding). So from that standpoint, the rationale is almost irrelevant.

            The point is, you either respect precedent or you don’t, and if you don’t, you need a principled basis to determine when and when not to overturn it. Neither liberals nor conservatives do this. Both liberal and conservative justices are happy to invoke or reject precedent as their result-oriented desires dictate. My issue with Brett is not his claim that liberals do it; it’s his implication that only liberals do it. Otherwise, it would be the simplest thing in the world for the Supreme Court to re-write Roe in an appropriate case so that the problems with the rationale are addressed while leaving the holding in place.

            1. Conservatives mostly don’t have to overturn precedent, because by the nature of things, they don’t need to. If you’re a “conservative”, things are by definition already largely to your liking, and you just want to keep them that way.

              Things do get a bit iffy when a conservative addresses an issue where they’ve already lost ground, and are trying to reclaim it. And it can be a bit confusing where you’re dealing with the unspoken precedents; The things that aren’t formally “precedent” only because they were so firmly established that they’d never been challenged to have their status ruled upon.

              But in general terms, one side is trying to change things, and the other trying to keep them unchanged or return them to what they were. And that has implications for how often the two sides end up trying to overturn precedent.

              1. Brett, I would be very careful with that definition.

                First, how do you determine the starting point for when things started to be changed? Abortion prior to “quickening” was legal in much of the US in colonial times; when laws began to be passed against abortion, was it then the liberals who were anti-abortion, since they were changing the status quo, even though they are now pro-abortion? There’s been so much back and forthing on polity and policy over the years that I don’t see how you objectively pick a starting point.

                Second, sometimes there are some really awful things, like slavery, that need to be changed. Are you really suggesting that the conservative position was to preserve slavery? If so, I want no part of it. “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the reason for the law has long since vanished and the rule persists simply out of blind obedience to the past.”

                1. It’s true that abortion prior to “quickening” was legal in “much of”, which is to say not all of, the US. And later became illegal in much of the US. Which established that that legality was discretionary. That was the precedent that Roe v Wade overturned: That whether or not abortion was to be legal was a legislative choice, not dictated by the Constitution.

                  And don’t make conservatives out to be parodies. They are quite selective about what they want to preserve.

                  1. But it hasn’t always been a legislative choice; abortion predates legislatures by millenia. So again, you’ve chosen an arbitrary line to reach a desired result. And the whole point of the Bill of Rights is to place some issues beyond the reach of the legislature.

                    And being quite selective about what you want to preserve means your philosophy is result oriented rather than principled. News flash: Liberals are also quite selective about what they want to preserve. They just disagree with you on the specifics.

                    1. “But it hasn’t always been a legislative choice; abortion predates legislatures by millenia.”

                      I suppose, trivially, something could not have been a legislative choice prior to the existence of legislatures. But that proves a bit much, doesn’t it? The point is that, until Roe v Wade, whether abortion was legal was considered a question for the legislature, which the Constitution didn’t have any bearing on. Overturning Roe would just restore that prior state of affairs.

                      “And being quite selective about what you want to preserve means your philosophy is result oriented rather than principled.”

                      No, it means that you’re not a stupid stereotype.

                    2. That’s because you’ve arbitrarily drawn your line at Roe v. Wade. I prefer to draw it before abortion was illegal. You’re entitled to your preference, and I’m entitled to mine, and the idea that yours is principled and mine is result oriented is risible.

                      And if you can show me a principled yardstick by which to measure what should, and should not, be preserved, I’ll take your argument there seriously too, but not until. You may not be a stupid stereotype, but you sure are good at defining things so that what you want just happens to come out on top.

                    3. Roe v Wade was where the Court asserted that whether abortion would be legal was dictated by the Constitution, not the legislatures. THAT is the issue we’re discussing, not whether abortion should be legal, but who decides: Legislatures or the judiciary.

                      Despite a history of legislatures deciding the question one way or another. Despite the fact that the Constitution doesn’t actually say anything about abortion. And despite the fact that they didn’t generalize the reasoning beyond abortion, which indicates to me that it was just pretext, not their actual reasoning.

                      Despite all this, the Court upset the prior precedent that this was a legislative decision. Roe v Wade overturned precedent. Just not Supreme court precedent.

                    4. Brett, by that definition, any time a court decides that a statute is unconstitutional, it’s a liberal decision. To which I say: Really?

                      Suppose State X passed a statute that says that internet blogs may be censored and subject to prior restraint. As with abortion, internet blogs are not mentioned in the Constitution, and I can envisage definitions of speech and press that don’t include the internet, so as with abortion, it would be a matter of interpretation whether that statute is constitutional. (I suspect you and I would come down on the same side of that question.) You’re telling me that because the Court is deciding, and because internet blogs aren’t mentioned by name in the Constitution, that that would be a liberal (and therefore bad) decision? C’mon.

                      And before you tell me conservatives aren’t stupid stereotypes (which I agree with), the problem is you have still not given me an objective yardstick for what you want preserved and what you don’t. It has to be more than just “judicial activism bad”.

            2. You don’t respect bad precedent. I hope you aren’t going to start defending Plessy v Ferguson next.

              And you just make my point here: ” we know significantly more about the science of pregnancy now than we did in 1973″ . Decisions carving out new constitution rights should be based solely on the constitution, not on science. Because there is one thing everyone should know by now: the science is never “settled”.

      2. Brett, your pattern continues of insisting you know the motives of liberals, while leaving the motives of your side to default to good faith.

        Double standard bad faith has really become your defining politics, beyond any actual substance.

        1. There are objective ways to test this.

          We can look at judgements in which a “conservative” Justice has tipped the SCOTUS balance on a political issue, to give victory to the liberal side – ie an issue on which the political world is divided left v right, liberal v conservative etc. (“Type A”)

          And we can look at judgements in which a “liberal” Justice has done the same thing the other way round. (“Type B”)

          Since the liberals are in a 4-5 minority, Type B is not easy to achieve. It can happen if a conservativd Justice is recused. Or dead and not yet replaced, or it can happen if a conservative Justice defects to the liberal side, so that a liberal Justice can flip the judgement back to the conservative side.

          Not relevant to the analysis are “Sinema” defections, ie where it makes no difference. Or compromise Roberts-kicks-it-down-the-road deals. Or judgements with little political importance.

          Any conservative could rattle off half a dozen Type As easily, and with a bit of thought could get up to twenty plus.

          Can you produce any Type Bs ?

          1. How does this test bad faith?

            1. By the laws of probability.

              If you cast a casting vote the way you’d like the result to come out, then it could be :

              (a) because that’s where your 100% good faith legal analysis happens to land, or
              (b) because you’ve landed, in bad faith, where you prefer to land.

              So each time you land where you want to land, you’re narrowing the odds in favor of (b). And each time you land where you don’t want to land, you’re narrowing the odds in favor of (a).

              1. Without a place to draw the line, that’s not super useful.

                The point is, Brett blames a tacit liberal agenda on every action he doesn’t like among the Judiciary, schools, media, even corporations. Oftentimes including some under-the-table coordination he’s sure is happening.

                This certainty of wide swaths of bad faith keeps his side the forever victim, and allows him to justify anything his side does. The speculative telepathy allows for a closed system of conservative righteousness that’s immune from facts.

                1. Just for fun, how about drawing a line at one.

                  One Type B.

                  The floor is yours.

                  1. Kinda revealing how easily you discard your statistical rigor patina. The modern Court has had a conservative median Justice since at least O’Connor, which rather goes to show the flaw in your methodology.

                    Not that you seem to care about that anymore, now that you get a chance to dunk on the libs.

                    The floor is yours.

                    1. Kinda revealing how easily you discard your statistical rigor patina.

                      How much statistical rigor do I need when you’re stuck on zero ?

                      The modern Court has had a conservative median Justice since at least O’Connor, which rather goes to show the flaw in your methodology.

                      As I said myself. So there will be fewer opportunities for liberal Justices to exhibit Type B behavior than there are opportunities for Conservative Justices to exhibit Type A behavior. But Type B opportunities certainly existed from Scalia’s death to Gorsuch’s appointment, and the liberal Justices scored zero during that litle interlude.

                      You could also trawl the Courts of Appeal where three Judge panels provide lots of opportunities for a defecting lib to tip the balance.

                    2. I said your metric was bad. You proceeded to more or less prove it was bad in your previous comment, as you switched to a broad rule paradigm and in doing so proved it was overdetermined.
                      Expanding the sample set to Appeals Courts doesn’t really address the problem.
                      You also assume parity in the radicalism of departures between partisan sides. I’m not sure that’s true, given the location of the judicial intellectual mainstream.

                      I mean look at what you’re arguing now – the lack of the 4 remaining liberals to take the ‘opportunity’ to make a conservative 5-4 decision proves very little about the bad faith of the liberals, or the conservatives.

                      Point is, defending Brett with his partisan bad faith behind every tree is a dumb game and you should stop playing. It ends up with you in the same boat.

                    3. I mean look at what you’re arguing now – the lack of the 4 remaining liberals to take the ‘opportunity’ to make a conservative 5-4 decision proves very little about the bad faith of the liberals, or the conservatives.

                      The five conservatives have, individually, taken lotsa opportunities to demonstrate good faith, by siding with the four liberals to produce a liberal decision. On no occasion that I am aware of have any of the four liberals taken the opportunity to demonstrate corresponding good faith. I concede that they have had fewer opportunities, but nonetheless they have had plenty. For example, aside from the departed Scalia window, every case in which a single conservative Justice has flipped to tip the majority to the liberals, is by definition an opportunity for a liberal Justice to tip the majority back to the conservative side. So you’re really left with :

                      You also assume parity in the radicalism of departures between partisan sides. I’m not sure that’s true, given the location of the judicial intellectual mainstream.

                      ie they can’t be biased because “the judicial intellectual mainstream” – ie what the 95% liberal legal academy, and sarcastro, likes – is liberal.

                      A visitor from Mars might wonder why the judicial intellectual mainstream might be thought to be something other than the opinions of the majority of Justices on the Supreme Court. We seem to haves shades of Vindman’s Interagency here, a mysterious body which has the authority to determine US foreign policy, overruling the President’s notions.

                      Point is, defending Brett with his partisan bad faith behind every tree is a dumb game and you should stop playing. It ends up with you in the same boat.

                      I do not precisely agree with Brett on this point. There’s no tree and they’re not hiding. My view is that liberal judicial theory* is ipso facto bad faith and therefore it is hardly surprising if that is what all liberal Justices produce.

                      * which goes by a lot of different names – living constitutionalism, the primacy of intent over text, purposivism, whateverism. But these are simply pegs on which to hang the essential point which is the judge gets to decide the case the way she likes and then wraps it in some verbiage. The verbiage may of course include utterly ruthless textualism, if it happens that the text supports the decision the judge wants to make.

  8. William Barr and a number of other conservatives have pushed a “unitary executive” theory for years, but Barr appears to have driven a stake through that theory’s heart with his recent conduct.

    Among the casualties of the Trump administration may be a number of conservatives’ pet theories.

    1. Oh, come on. His own ox being gored, Barr is whining. That doesn’t drive a stake through the heart of the unitary executive, as Barr will learn if he persists and gets fired.

  9. The good professor has lodged another failing argument against the travel ban. Why? Because despite nondelegation being a good argument in some cases, it is not here. The President here is acting as commander in chief and protecting from foreign threats. If such an argument was lodged in full in front of SCOTUS it is much more likely that the decision would be that Congress does not have the power to restrict the Presidents powers at the border to prevent the entrance of possible foreign agents.

    1. Allutz, I also question the throwaway comment at the start wrt the travel restriction policy put into place; namely, that it is immoral and bad policy. The professor is wrong on both counts. It is neither moral nor bad policy.

      The ban prohibits foreign nationals whose countries refuse to provide our country with reliable and verifiable information on their citizens. No information, no entry. Period.

      This policy was actually proposed by POTUS Obama, and for the life of me…I am looking for Professor Somin’s arguments against that policy at that time while POTUS Obama was in office and just do not find them. An amazing coincidence. That calls into question the intellectual honesty of professor Somin.

  10. So far the only remotely substantive arguments offered (among many substanceless accusations of bad faith or name calling), are that the President has unchecked authority in this sphere.

    This is the New Right – small government principles fall before mass deportations ‘for rule of law’ by hook or by crook.

    1. The power to exclude aliens is not the same as the power to deport them.

      1. How is that a distinction with a Constitutional difference?

        1. Because first, one is primarily, in nature, a police action, while the other is a national defense measure. And second the Constitution does not apply to non citizens (and arguably citizens in some cases, I’m not sure these arguments are well tested with things like the droning cases, or a potential quarantine case, so don’t quote me on that) that are not on US soil.

        2. Easy….

          Not allow entry: The foreigner has no constitutional rights to defend.
          Deport: The alien has constitutional rights that must be defended.

        3. Allutz – Neither is a national defense measure. The military has no place in either action.
          Quarantine has it’s own legal regime, separate from both.
          Overflights are again a separate legal regime with their own caselaw.

          Commenter – foreigner versus alien, eh? That’s not a distinction I’m aware of at law.

          1. A foreigner located outside the US has almost no constitutional rights. This person can be excluded by the President for almost any reason.

            An alien located inside the US is a person who has some rights that have to be respected and can be deported only through due process as defined by immigration law.

            It’s not that difficult a distinction to understand.

            1. What you describe is not currently the law.

              1. Interesting.

                What interpretation do you think the law puts on “any person within its jurisdiction” in :

                nor deny to any person within its jurisdiction the equal protection of the laws

  11. Jackson’s Youngstown concurrance is often held out as the gold standard for evaluating the President’s powers in the 70 some years since it was published. So here is the first prong of his 3 part test which matches his travel ban the closest:

    1. Jackson’s first test:
      “1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government [343 U.S. 579, 637] as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.”

      Of course if the Supreme court did revive the non-delegation principle it would make Jackson’s 3 part test obsolete, but there it is for now.

      1. As usual, Jackson thinks and writes powerfully, but in this case I have a question. In this nation, if you are going to personify a sovereignty, don’t you have to personify the People’s sovereignty? I hope Justice Jackson does not suppose the nation operates under competing sovereigns.

      2. “…all that Congress can delegate” is an important part of that decision that I think you are ignoring. Non-delegation would not at all make Jackson’s opinion obsolete. The question remains, how much can Congress delegate?

        1. Drinkwater, I am not ignoring it. I am asserting Congress cannot delegate the People’s sovereignty, because it is not in the power of Congress to do that. The People rule Congress, full stop. You cannot somehow reverse that without also contradicting it.

  12. I heartily encourage massive expansion of the non-delegation doctrine.

    I just hope it isn’t a fair weather friends issue for many, to be forgotten when the current issue is over.

    It’s not just situational ethics, is it? It isn’t being given high weighting because it serves our purpses of the moment, to be zeroed out if it gets in our way later?

    1. It absolutely is, I expect.

  13. I don’t want to kill Ilya’s buzz over this, but the Supreme Court will never ever pick Travel Ban 3.0 as it’s vehicle to reinstate the non-delegation doctrine. I don’t think the liberal bloc hates the travel ban as much as they hate the non-delegation doctrine, and the conservative bloc is going to pick a purely domestic case with no national security implications. Goresuch wouldn’t risk having to depend on votes that are only there for one issue to lay out a principle he hopes he can apply across the regulatory state.

    Cert denied.

  14. I seem to remember not long ago on this blog there was debate here about whether Congress even has immigration power to start with. Does power over naturalization also include immigration? Foreign Commerce? N&P? I do think the the nondelegation doctrine needs to be revived but surely first they’d have to answer this beast of a question whether Congress even has power over immigration. If it doesn’t then delegation isn’t involved and immigration statutes can be ignored.

    1. My watch tells me it’s past 1808. So yes, Congress can prohibit “importation or migration.” And what it can prohibit outright, it can regulate or allow conditionally.

  15. I think a fundamental problem with this approach is that Congress’ authority to delegate to the President is at its apogee when dealing with matters of national security and foreign relations. Congress has the constitutional power to repel invasions, but very early on it delegated this power entirely to the President.

    This example probably illustrates the uphill battle Professor Somin faces. Would courts really enjoin the President from repelling a full-scale conventional military invasion because the underlying law delegates too much power?

    The fact is this country has a long history of delegation to the executive in this and numerous foreign relations and national security matters, a history that both long preceded and has easily survived the court’s non-delegation cases.

    Why should this be any different?

    The governing statute gives the President criteria to use. If Congress doesn’t want to delegate so much power — and there’s certainly a good policy argument it shouldn’t — it can pass a statute clawing some of it back.

  16. “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.”

    This doesn’t make sense. The rule in question is not “generally applicable”. It only applies to non-citizens seeking entry to the US.

    “ 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.”

    Where does the constitution say political leaders must show their work for their action to pass muster?

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