The Volokh Conspiracy
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My New Verfassungsblog Article On "The Nondelegation Case Against Trump's New Travel Ban"
It explains why a nondelegation challenge could work and deserves to win, despite Trump v. Hawaii.
Verfassungsblog just published my article "The Nondelegation Case Against Trump's New Travel Ban." This site is a prominent German academic forum devoted to analysis of public law issues. Here is an excerpt from the article:
Last week, President Donald Trump imposed a massive travel ban, barring nearly all immigration and other entry into the United States by citizens of twelve nations, and imposing severe restrictions on seven more. The twelve nations subjected to near-total bans are Afghanistan, Burma, Chad, the Republic of Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen. The other seven are Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, and Venezuela.
As the American Immigration Council explains, barring nearly all migrants from these countries will significantly damage the US economy, and have negative humanitarian effects, as well. Migrants from many of these countries – including Afghanistan, Cuba, Iran, and Venezuela – are fleeing horrific poverty and oppression by communist, radical Islamist, and other authoritarian regimes. If Trump and the Republican Party truly cared about combating communism and radical Islamism, as they like to claim, they would not shut America's doors to their victims.
The security rationales for the travel ban – reducing crime and terrorism – are extremely flimsy. Immigrants from the countries in question have extremely low rates of terrorism and much lower crime rates than native-born Americans.
Despite the enormous harm likely to be caused by the travel ban, many assume there is no effective way to challenge it in court. The Supreme Court's badly flawed ruling in Trump v. Hawaii (2018) – addressing Trump's first-term "Muslim ban" – probably precludes challenges based on discriminatory intent. Other factors may block that sort of challenge, as well. Nonetheless, there is an alternative path to striking down the new travel ban: the nondelegation doctrine. That path remains open because Trump v. Hawaii did not consider nondelegation issues; indeed, the word "nondelegation" is not even mentioned in any of the five majority, concurring, and dissenting opinions in that ruling. So, while it may not be easy to mount a successful legal challenge to the ban, the combination of its enormous scope and the weaknesses of its ostensible rationales could open the door to a successful nondelegation claim.
The rest of the article explains the basis for a nondelegation claim, and addresses potential objections, including the idea that the power to restrict immigration is actually an executive authority, rather than a congressional one.
