Media Mention

Ilya Somin: A Nondelegation Challenge to Trump’s Travel Bans

February 17, 2020

Note: this piece was originally published on Reason, and was written by Checks & Balances member Ilya Somin. 

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 iss 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.

Continue reading at Reason.