The Volokh Conspiracy
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Trump's Cruel and Illegal Expanded Travel Ban
A recent White House proclamation further expands his previous travel bans, to the point of barring nearly all legal migration from some 40 countries. Legally, it further underscores that Trump is claiming virtually unlimited executive power to restrict immigration,a claim that runs afoul of the nondelegation doctrine.
On December 16, President Trump issued a proclamation barring nearly all legal migration from some 40 countries. As my Cato Institute colleague David Bier explains in a thorough and insightful post, the new policy goes well beyond Trump's already expansive previous travel bans, causing great harm including separating many US citizens and permanent residents from spouses and children:
President Trump signed a new proclamation that bans nearly all legal immigration from about 40 countries, covering about one in five legal immigrants from abroad and nearly 400,000 legal immigrants over three years. Although it exempts some foreign workers and travelers from certain countries, this ban does not include any categorical exemption or waiver for spouses, minor children, or parents of US citizens or legal permanent residents, making it far harsher than his prior bans.
The ban repudiates the immigration system Congress created. The Trump administration is reimposing via executive order the national origins system that governed immigration policy from 1924 to 1965. After four decades of rigorous debate, Congress ended that system. In the Immigration Act of 1965, it allocated the caps on immigrant visas equally between countries and prohibited discriminating against immigrant visa applicants based on their race, sex, nationality, place of birth, or place of residence.
David's post effectively outlines the enormous scope of the new ban, and the extensive harm it will cause. He also shows that the supposed security rationale for the policy is utterly indefensible, as immigrants from these countries actually pose little, if any, security risk.
From a constitutional point of view, this proclamation further underscores Trump's claim to virtually unlimited executive discretion to restrict migration, in the process abrogating legal migration pathways established by Congress, including even those for spouses and children of US citizens. In an article on Trump's earlier - already extensive - second-term travel bans, I explained why this violates the nondelegation doctrine, which constrains delegation of legislative power to the executive, and addressed various objections (such as the idea that immigration restriction is actually an inherent executive power; also, I note that Trump v. Hawaii (2018) doesn't preclude nondelegation challenges to executive immigration restrictions, because it did not consider that issue, or even mention it). I think this policy also likely violates the major questions doctrine, which requires Congress to speak clearly when it delegates to the executive the power to decide major economic or political questions.
Nondelegation and major questions are central issues in ongoing challenges to Trump's attempt to impose a $100,000 tax on H-1B visas, and in at least one case challenging the the less extreme travel ban he imposed in June. I hope litigants will raise these issues, here as well.
As James Madison argued, the framers of the Constitution likely did not intend to give the federal government a general power to restrict immigration at all. And they certainly did not mean for such a sweeping power to be exercised at the whim of one man.
