Amicus Brief in Title 42 "Public Health" Expulsion Case

I wrote an amicus brief on behalf of the Cato Institute, addressing the important nondelegation and "major questions" issues raised by the federal government's awful policy.

On Friday, the Cato Institute filed an amicus brief I authored for them in the Title 42 "public health" expulsion case. I previously wrote about this case, which is currently before the DC Circuit, here. The brief itself is available here. And here is a summary of the brief adapted from the Cato website:

Since March 2020, the Centers for Disease Control (CDC), has used its supposed powers under Section 265 of the Public Health Service Act of 1944 to expel hundreds of thousands of migrants and asylum seekers crossing the southern border. Several of those affected challenged these actions, and the D.C. federal district court ruled in their favor. The government has now appealed to the D.C. Circuit Court of Appeals—and Cato filed an amicus brief supporting the lower‐​court ruling.

The government's interpretation of the CDC's powers would render the statute unconstitutional by violating the nondelegation doctrine. As the Supreme Court recently explained (Gundy v. United States, 2019), that principle of separation of powers holds that "Congress … may not transfer to another branch 'powers which are strictly and exclusively legislative.'"

While Congress can give executive branch officials a wide range of discretion, it it cannot delegate "unguided and unchecked" discretion over a major area of public policy, such as immigration and entry into the United States.The latter is exactly what the CDC would enjoy if the government prevails in this case: It would have the power to exclude or deport virtually any entrants into the United States at any time.

Section 265 gives the CDC "the power to prohibit… the introduction of persons and property from such countries or places as he shall designate" whenever the agency "determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States." If this language is interpreted as giving the CDC virtually unlimited power to bar or deport migrants from such countries as it designates, it would violate constitutional constraints on Congress's delegation of the legislative power.

By contrast, there would be no such nondelegation issue if the term "introduction" were limited to situations where the entry of persons from the country in question could result in the spread of a disease not already prevalent in the United States. The problem could also be averted if the D.C. Circuit adopts the plaintiffs' interpretation of Section 265 as being limited to regulation of transportation, excluding the power to deport migrants, and subject to limitation by later statutes granting rights to asylum seekers.

For similar reasons, the CDC's position also violates the longstanding principle that courts must not assume that Congress has delegated to the executive the power to decide a "major" question of public policy, unless Congress has clearly indicated its intent to do so.

The Supreme Court recently reaffirmed this vital rule in blocking another Covid‐​related CDC action, the eviction moratorium. In Alabama Association of Realtors v. HHS, the Court rejected the CDC's claims that another provision of the Public Health Service Act gave it essentially limitless power to regulate housing. "Even if the text were ambiguous," the Court found, "the sheer scope of the CDC's claimed authority under Section 361(a) would counsel against the Government's interpretation."

The same agency has made the same mistake here. Rather than heed the admonition that Congress "does not … hide elephants in mouseholes," (Whitman v. American Trucking, 2001),the CDC has tried to squeeze yet another pachyderm into a narrow provision of the Public Health Service Act.

There are few bigger elephants than near‐​total control over entry into the United States. The D.C. Circuit should affirm the ruling against these expulsions, a policy begun under the Trump administration that has largely continued under President Biden.

This brief also has the support of the "other" Ilya: Cato Institute Vice President Ilya Shapiro, who oversees Cato's amicus brief program. The two of us get confused with each other often enough that there is an #IlyaConfusion hashtag on Twitter. I have written a comprehensive guide to telling the two Ilyas apart.

As I point out in the guide, we often differ on legal issues involving immigration. This case is a rare exception! Hopefully, with not one, but two Ilyas arrayed against it, the government doesn't stand a chance.

On a more serious note, this is also a rare case that features both major legal issues and enormous real-world impact. If the government prevails, it would - for reasons set out in the brief - set a very dangerous precedent. And the lives and freedom of large numbers of people are at stake, as well (a point we also cover in the brief).

Comments

[Sidney r finkel]

Those of us who are horrified by the decades long trend of Congress delegating (Unconstitutionally in our opinion) exclusive powers of the Congress to the Executive Branch loundly applaud this action on the part of the Cato Institute.

The decline of principled Conservatism in this nation has long been aided by Congress being unwilling to assume responsibility for unpopular and/or difficult governmental decisions and so delgating those powers to the President. The result has been a decline in thoughtful, measured, mature decision making and governing. Hopefully the action described above will be one step towards restoring the vision of the founders and the principles of conservatism espoused in the 19th century.

[Gandydancer]

Utter nonsense. The law doesn't involve any umconstitutional delegation of legislative power. Identifying countries with diseased populations and excluding importation of such disease is perfecvtly appropriate executive action.

[Darth Chocolate]

Gotta hand it to Somin. No matter how reprehensible the concept of open borders (if you are not willing to defend your borders, what are you willing to defend?) is, he IS consistent.

Something reminds me of consistency and hobgoblins.

[Rev. Arthur L. Kirkland]

Prof. Somin appears to be a libertarian. He also appears not to be a bigot, although he certainly exhibits poor judgment by associating with plenty of right-wing bigots. I doubt authoritarian Republican racists and faux libertarian, conservative xenophobes will ever like Prof. Somin or his positions with respect to immigration.

[Gandydancer]

Prof. Somin appears to be a jackass, in that respect pretty much like you, asshole.

[David Nieporent]

Prof. Somin says nothing about not defending borders. It's a cute rhetorical trick to use a term about attack in the context of a discussion about travel.

[Squirrelloid]

There are flaws like missing sentence ends. Example: "By contrast, there would be no such nondelegation issue if the term "introduction" were limited to situations where the entry of persons from the country in question could result in the spread of a disease not already prevalent in the United States. The problem could also be averted if the D.C. Circuit adopts the"

Just ends at 'the' (and that's the paragraph end too).

Could maybe use a proofreading pass?

[DWB]

One trick pony has .... one trick

Perhaps you should have done a better job of protecting citizen's rights???

[Brett Bellmore]

So far, you've taken the stance that the US can't exclude people who claim asylum, even if they've passed through states where they could have found it on their way here.

The US can't exclude economic migrants with no claim for asylum.

The US can't deport illegal immigrants who commit crimes. Or legal immigrants whose applications were fraudulent.

There seems only one remaining horizon, and you really ought to address it directly and clearly.

Can the US still repel armed troops?

[Sarcastr0]

You think they’re all invaders so dunno why you would care.

[Brett Bellmore]

No, that's stupid: The ones entering legally aren't invaders.

And only the armed ones are "armed troops".

I already know that he doesn't think the US is entitled to repel most invaders, but I'm curious about the ones who come armed wearing uniforms; I don't recall him opining about those ones.

[Bob from Ohio]

"Can the US still repel armed troops?"

Several years back, he once said that we "might" be able to exclude known terrorists and violent criminals. Might, not sure.

[ReaderY]

While I am sympathetic to Professor Somin’s ideological motivations and some of his polcy arguments, his legal arguments on this subject have been extraordinarily weak.

The best analogy for his constitutional arguments I can come up with would be an automobile enthusiast, desperate to drive a prized antique car despite its failing compliance tests, who comes up with an argument that the federal government lacks constitutional authority toregulate automobiles. Now, limits on federal cmmerce power really are a thing. But unfortunately for the enthusiast, it’s been clear for some time that automobiles are so well within those limits that attempting to argue they aren’t is essentially a crank argument.

So here. War, invasion, and foreign policy powers are at the apogee of Congressional delegation authority. Congress delegated to the President its entire power to repel invasions in the 18th century, a power very similar to the one Professor Somin objects to here. It delegated authority to launch nuclear weapons decades ago. The War Powers Act acknowledges and hence effectively delegates Presidential authority to conduct military operations abroad. And Congress has long given the President a lot of discression over immigration decisions. And courts have consistently upheld Congress’ power to delegate on these matters. When the President acts on the explicit authority of Congress in a matter of war, foreign policy, or immigration, the President’s authority combines his own intrinsic authority with that of Congress, and is at its maximum.

Congress’ long history of extensive delegation to the President with the full blessing of the courts, from the very foumdimg of the Republic through Trump v. Hawaii, simply belies Professor Somin’s constitutional argument.

Professor’s position might be good policy. But as a constitutional argument it’s meritless.

[Ridgeway]

Plus, the non-delegation argument itself is borderline frivolous.

As Prof. S states, Section 265 gives the CDC "the power to prohibit… the introduction of persons and property from such countries or places as he shall designate" whenever the agency "determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States."

Of all the delegations of power in the US Code, this is the one he thinks is not specific enough?

He needs to torture the meaning of "introduce" to require that if a single case of a given disease is already present in the US, then the CDC is powerless to prevent any further immigration by carriers of the same disease.

By his logic, a smallpox carrier could not be denied entry, because smallpox was introduced to the US centuries ago.

[ReaderY]

Agree. When the Supreme Court upheld obscenity laws in Miller v. California if obscenity was clearly defined and states started identifying sexual acts in their laws, enterprising lawyers argued that these laws either didn’t cover the films involved or were obviously unconstitutionally overbroad. These laws prohibited graphic depictions of “intercourse” - simple interaction! And “oral intercourse” - ordinary conversation!

Professor Somin’s argument here has the feel of these types of arguments. It’s not just creativity. It’s not just desperation. He doesn’t WANT these laws to make sense. So he’s highly motivated to make nonsense arguments. If he can show the law makes no sense, he wins. So it’s understandable that he would have a hard time distinguishing between a reasonable argument that the law makes no sense, and a nonsense argument.

This is a general problem with vagueness rules. Strong opponents often find reasons to claim laws are unclear when proponents and neutral observers woul find them perfectly clear. And every now and then, these types of arguments convince a sympathetic judge, the sort who (like Professor Somin) vehemently opposes the policy and is out looking for an excuse to strike down the law embodying it.