The Volokh Conspiracy
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The Nondelegation Case Against Trump's Massive New Travel Ban
Trump v. Hawaii may block a challenge based on unconstitutional discrimination. But it does not preclude a nondelegation case. Other recent developments may actually bolster that approach.
In my previous post on Trump's massive new travel ban, I noted that the Supreme Court's badly flawed ruling in Trump v. Hawaii (2018) probably precludes challenges based on discriminatory intent. But I also noted there is an alternative path to striking down the new travel ban: nondelegation doctrine. That path remains open because Trump v. Hawaii did not consider nondelegation issues; indeed the word "nondelegation" isn't even mentioned in any of the majority, concurring, and dissenting opinions in that ruling. In this post, I outline how it can be done.
The basic idea is very simple. The Supreme Court has held that there must be at least some limit to congressional abdication of legislative power to the executive. If anything violates that constraint, unlimited delegation of a major power does so. That's exactly what two federal courts recently held in striking down Trump's assertion of virtually unlimited power to impose tariffs.
Trump's sweeping new travel ban can only be justified by a virtually unlimited grant of authority to impose immigration restrictions. Unlimited delegation of power over immigration is unconstitutional for much the same reasons as unlimited tariff authority. Both are sweeping powers with vast impact on millions of people. Indeed, immigration restrictions may be even more impactful than tariffs, as they are literally matters of life and death for many migrants fleeing oppression and violence.
The statute Trump cites to justify the new travel ban, 8 U.S.C. Section 1182(f), gives the president the authority to "bar the entry of any aliens or of any class of aliens into the United States" whose admission he finds "would be detrimental to the interests of the United States." That seems like virtually limitless authority to restrict migration and other entry into the United States, and the Supreme Court more or less interpreted it that way in Trump v. Hawaii, in upholding Trump's first-term "Muslim ban" barring nearly all entry by citizens of several Muslim-majority nations. Chief Justice John Roberts' majority opinion describes Section 1182(f) as a "comprehensive delegation" that "exudes deference to the President in every clause."
The current travel ban is far more sweeping, forbidding nearly all or most immigration and other entry by citizens of nineteen nations. It would cause enormous economic and humanitarian harm. As my Cato Institute colleagues (and leading immigration policy experts) Alex Nowrasteh and David Bier explain in two excellent posts (see here and here), the Administration's rationales for the ban are extremely flimsy, at best. Despite claims that the ban will protect the US against crime and terrorism, migrants from the covered nations have extremely low rates of terrorism and much lower crime rates than native-born Americans. Bier and Nowrasteh also shred the administration's infomation-sharing and visa overstay theories. I would add that overstays by visitors on short-term temporary visas can't possibly justify barring long-term migrants and refugees. The latter get permanent residency (or are on track for it) and therefore pose little or no risk of overstaying.
If such extremely weak arguments are enough to show that the banned migrants would be "detrimental to the interests of the United States," and that a gargantuan travel ban can be imposed, then virtually any immigration restrictions can be justified on the same basis. One can argue that keeping out even a very small number of criminals or terrorists serves the national interest. But virtually immigration restrictions can be justified in that way. After all, any substantial number of immigrants is likely to include at least a few who go onto commit crimes, even if their crime is extremely low. The same goes for visa overstays or any other problem potentially caused by migration. Such "one criminal is one too many" rationales for restriction unavoidably devolve into rationalizations for unlimited power.
There are ways to interpret Section 1182(f) more narrowly. For example, one can argue that it implicitly applies only to large negative effects on US interests, or that its use is constrained by other statutes authorizing the issuance of immigrant visas, work visas, and other modes of legal migration. But if the discretion granted by the law is limited in any substantial way, much of Trump's travel ban becomes illegal.
In sum, the new travel ban can only be upheld if Section 1182(f) gives the president virtually unlimited power to exclude migrants and other non-citizens from entering the United States. He must be able to declare pretty much any potential migrant's entry "detrimental to the interests of the United States" and thereby ban them. That sure seems like a nondelegation problem to me!
As discussed in my previous post, there is one important difference between tariffs and immigration that might make a nondelegation argument harder in this case. Article I of the Constitution specifically gives Congress power over tariffs, while the Constitution does not clearly indicate which branch of government has the power to restrict immigration That is probably because the federal government wasn't supposed to have that power at all. But if the power does exist (as longstanding Supreme Court precedent holds), the most plausible account of where it lies suggests it belongs to Congress.
In the 1889 Chinese Exclusion Case —the awful decision establishing that the federal government h power over immigration—the Supreme Court states that the authority belongs to "the legislative department." The Chinese Exclusion Case famously did not link immigration authority to any specific enumerated power, instead holding that it exists because it is an "inherent incident of sovereignty." Some scholars have argued that the immigration power arises from the power to regulate foreign commerce or the Naturalization Clause (which gives Congress the power to grant citizenship). Both of these are enumerated congressional powers, much like the tariff power, and presumably subject to the same nondelegation constraints.
A few academics have argued that the immigration power is actually an inherent executive power. The Supreme Court's 1950 decision in U.S. ex rel. Knauff v. Shaughnessy nods in this direction, stating that "[t]he right to do so stems not alone from legislative power, but is inherent in the executive power to control the foreign affairs of the nation." But the executive power theory makes little sense. If the president has inherent, virtually unlimited power to exclude non-citizens, there would be no need for the many congressional statutes that grant him some degree of authority to do so, going all the way back to the Alien Enemies Act of 1798, a wartime authority that Trump has been (illegally) trying to use to facilitate peacetime deportations without due process.
Under the inherent executive power theory, all such laws would become superfluous. The president could just exclude any immigrants he wants without any need for legislative authority. Indeed, there would be no need for Section 1182(f), either. The president would also then be free of any obligation to obey any statutory restrictions on his authority in this sphere. Presumably, Congress cannot not take away or constrain an inherent executive authority.
A broad interpretation of Knauff is therefore at odds with centuries of practice and precedent. In addition, there are ways to distinguish that case from a potential challenge to Trump's new travel ban. Knauff dealt with a limited statute that "authorizes…. special restrictions on the entry of aliens only when the United States is at war or during the existence of the national emergency proclaimed May 27, 1941," and does not apply "during normal times." The Court emphasized that a "state of war still exist[ed]" still during the relevant time period. The President, as commander-in-chief of the armed forces obviously has greater discretion in wartime.
In addition, Knauff did not endorse unlimited delegation to the executive, noting that "[n]ormally, Congress supplies the conditions of the privilege of entry into the United States." The executive is only "entrusted with the duty of specifying the procedures for carrying out the congressional intent." That suggests there are limits to the extent of permissible delegation.
Finally, Justice Robert Jackson's eloquent dissent in Knauff gives courts powerful reasons to avoid applying that flawed precedent any more broadly than absolutely necessary:
I do not question the constitutional power of Congress to authorize immigration authorities to turn back from our gates any alien or class of aliens. But I do not find that Congress has authorized an abrupt and brutal exclusion of the wife of an American citizen without a hearing….
Security is like liberty, in that many are the crimes committed in its name. The menace to the security of this country, be it great as it may, from this girl's admission is as nothing compared to the menace to free institutions inherent in procedures of this pattern. In the name of security, the police state justifies its arbitrary oppressions on evidence that is secret, because security might be prejudiced if it were brought to light in hearings….
Congress will have to use more explicit language than any yet cited before I will agree that it has authorized an administrative officer to break up the family of an American citizen or force him to keep his wife by becoming an exile.
More can be said, and I in fact made additional points in a 2020 post, where I first suggested using nondelegation doctrine to challenge Trump's February 2020 travel ban covering six nations. Little came of that idea, as the Covid pandemic and Trump's departure from office in January 2021 ensured there was little opportunity to challenge that ban before Joe Biden revoked it upon taking office. This time around, we cannot count on Trump's travel ban ending any time soon—unless he is forced to do it.
I will likely expand on the ideas developed here in future writings, and address additional potential objections. For now, I conclude by saying that a nondelegation challenge to the new travel ban strikes me as viable, and that it seems more promising than any other possible approach.
Others might come up with different and better ideas. If so, I look forward to seeing them.
