Tuesday, February 18, 2020
Noting that the new travel ban will benefit from Trump v. Hawaii's approval of the prior travel ban, Ilya Somin discusses nondelegation as an alternative legal theory for challenging the travel ban on The Volokh Conspiracy. His interpretation focuses on 8 USC Section 1182(f), which gives the President the power to bar entry into the US by any foreign national whom he deems to "detrimental to the interests of the United States." Somin's reading of this reliance follows:
In sum, if Trump v. Hawaii's interpretation of Section 1182(f) is correct, then Section 1182(f) is an unconstitutional delegation. At the very least, it suggests that a nondelegation challenge to Trump's travel bans is worth trying. And, as noted above, both the earlier and expanded versions of the travel ban depend on presidential power under Section 1182(f). If it gets invalidated, all or most of the travel ban policy falls with it.
Faced with a strong nondelegation challenge, the courts could choose to give Section 1182(f) a narrower interpretation rather than striking it down outright. If so, that would likely still be a victory for opponents of the travel ban, as it is unlikely it can be narrowed significantly without jeopardizing at least some large parts of the travel ban. It could also set a valuable precedent for future nondelegation cases.