In my previous post about Trump’s massive new travel ban, I have a grossly flawed Supreme Court ruling. Trump vs Hawaii (2018) presumably eliminate the challenge based on discriminatory intent. But I also pointed out that there is another path in which there is an alternative path to hitting a new travel ban. The road remains open Trump vs Hawaii We did not consider the non-aligned issue. Certainly, the term “nondelegation” is not mentioned in its judgment by any majority who agree and dispute. In this post, I’ll outline how you can do it.
The basic ideas are very simple. The Supreme Court held that there must be at least some limitation on the parliamentary abdication of legislative powers over enforcement. If that constraint is violated, an unlimited delegation of key power will be made. That’s exactly that Two federal courts have been held recently By hitting Trump’s claim of virtually unlimited authority to impose tariffs.
Trump’s sweeping new travel ban can only be justified by a virtually unlimited grant of power to immigration restrictions. For almost the same reasons as unlimited customs authorities, unlimited delegation of power to immigrants is unconstitutional. Both have a major impact on millions of people and are cleaning skills. Certainly, immigration restrictions could have even more impact than tariffs. Because they are literally a matter of life and death for many migrants fleeing oppression and violence.
Trump is quoting to justify the new travel ban, 8 USC Section 1182(f)grants the president the authority to “enter the US alien or alien class of intrusions.” It seems like virtually unlimited authority to restrict migration and entry into other US. Trump vs Hawaiiwhich supports Trump’s first term “Muslim ban,” which bans almost all entry by citizens of several Muslim majority countries. Secretary John Roberts’ majority opinion describes section 1182(f) as a “comprehensive delegation” that “expands respect for the President in all provisions.”
The current travel ban is much cleaned up, banning almost all or most immigrants and other entry by citizens of 19 countries. That’s the cause Huge economic and humanitarian hazards. As my Cato Institute colleagues (and major immigration policy experts), Alex Nowrasteh and David Bier explain in two great posts (see here and here), the administration’s basis for the ban is at best very thin. Despite claims that the ban protects the United States from crime and terrorism, immigrants from target countries have a much lower rate of terrorism and far lower rates of crime than native-born Americans. Bier and Nowrasteh also shredded the administration’s information sharing and visa overstay theory. I add that short-term temporary visas are in stock by visitors. It would not be justified except for long-term immigration and refugees. The latter has acquired permanent residency (or is on track for it), and therefore there is little or no risk of overstaying.
If a very weak argument is sufficient to show that banned immigration is “harmful to the interests of the United States,” and that a massive travel ban can be imposed, effectively immigration restrictions could be justified by the same standard. Even a very small number of criminals and terrorists can be argued that it will serve the national interests, even if they are locked out. But in effect, immigration restrictions could be justified in that way. After all, a considerable number of immigrants could include at least at least a few people who committed the crime, even when the crime is very low. The same applies to other issues that could be caused by Visa tenure or transition. The reasonable basis for such a “one offender, too many offenders” limit is inevitably deviant in the rationalization of unlimited power.
There is a narrower way to interpret section 1182(f). For example, it could be argued that it applies only to a significant negative impact on US interests, or that its use is constrained by other statutes that allow for the issuance of immigration, work visas, and other legal modes of transition. However, many of Trump’s travel bans are illegal if discretion granted by law is restricted in a substantial way.
In short, we can only support the new travel ban if Section 1182(f) gives the President virtually unlimited authority to rule out immigrants and other non-citizens from entering the United States. He must almost declare potential entry for immigrants “harmful to the interests of the United States” and thereby be able to ban them. That certainly seems to me an unconnected issue!
As explained in my previous post, in this case there is one important difference between immigration, which can make the discussion of tariffs and immigration difficult. Article 1 of the Constitution specifically cites the power of parliament over parliamentary tariffs, but the Constitution does not clearly indicate that branches of government that presumably restrict immigration have the power to restrict. The federal government was not supposed to have that power at all.. But when power exists (as the long-standing Supreme Court precedent holds), the most plausible explanation of where it lies suggests it belongs to Congress.
1889 China’s exclusion case – A frightening decision establishing that the federal government controls immigration – The Supreme Court says the authorities belong to the “legislative division.” China’s exclusion case It famously believed that immigration authorities existed because they did not link them to specific enumerated forces, but instead were “inherent incidents of sovereignty.” Some scholars argue that immigration rights arise from the power to regulate foreign commercial transactions or naturalization clauses, which grant parliament the authority to grant citizenship. Both of these are enumerated parliamentary powers that are similar to tariff power, and are likely subject to the same non-requisite constraints.
A small number of scholars argue that immigration power is indeed an inherent enforcement power. Supreme Court decision in 1950 US ex rel. Knauffv. Shaughnessy I’m nodding in this direction and saying that.”[t]He is not alone from legislative power, but inherent in enforcement power to control the diplomacy of the state. “However, if the President has the inherent virtually unlimited powers to eliminate non-citizens, then there would not be much Congressional law to give him some power to grant him some power to promise to be on the enemy who takes the enemy. (Illegal) They are trying to use it to promote deportation in peacetime without a legitimate process.
Under the inherent theory of executive power, all such laws are no longer needed. The president was able to rule out the immigrants he wanted without needing legislative power. In fact, section 1182(f) is also not required. The President will also not be obligated to comply with statutory restrictions on his authority in this field. Perhaps Congress cannot take or restrict its inherent enforcement body.
A broad interpretation of Nof Therefore, it is at odds with centuries of practice and precedent. Plus, there are ways to distinguish the case from the potential challenges of Trump’s new travel ban. Nof “We addressed a limited law that only allowed special restrictions on alien entry during the war or during the existence of a national emergency declared on May 27, 1941, and that did not apply during “normal times.” The court emphasized that a state of war still exists.[ed]”During the relevant period. The president as commander of the military clearly has great discretion during the war.
In addition, Nof They didn’t support the unlimited delegation with the executives, but they paid attention to that.”[n]Ormally Congress provides the conditions for the privilege of entering the United States. “The executives are simply entrusted with the obligation to identify procedures to implement Congressional intent.
Finally, the eloquent opposition of Judge Robert Jackson. Nof Give the courts strong reasons to avoid applying that flawed precedent more widely than absolutely necessary:
I have no doubts about the Congress’ constitutional authority to allow immigration authorities to turn foreigners and rank foreigners and classes back from our gates. However, I have not discovered that Congress has allowed for the sudden, brutal exclusion of the wife of a American citizen without hearing…
Security is like freedom. It is a crime that many people have committed under that name. There is nothing to the country’s safety from this girl’s entrance compared to the free agency inherent to this pattern of procedures, compared to the threat. In the name of security, the police state justifies arbitrary volitional oppression of secret evidence.
Congress must use more explicit language than is still cited before agreeing to allow administrators to force their wives to be maintained by disbanding American citizens’ families or becoming exiles.
There’s more to say, but in reality I gave an additional point in my 2020 post. There, they first proposed using unconsolidated doctrines to challenge Trump’s February 2020 travel ban covering Six Nations. The Covid pandemic and Trump’s inauguration in January 2021 were little thought as it ensured that Joe Biden had little opportunity to challenge the ban before he took office and revoked it. This time, we cannot expect Trump’s travel ban to end soon.
I will probably expand on the ideas developed here in future writings and address additional potential objections. For now, I conclude that a secular challenge to a new travel ban hits me with the viability of me, and that seems more promising than other possible approaches.
Others may come up with different, better ideas. If so, I look forward to seeing them.
