A little over a year ago, America’s airports were filled with chaos as President Trump’s executive order on immigration — his travel ban — threw doubt on whether people from seven Muslim-majority countries could enter the United States. On Wednesday, after lower courts struck down the first and second versions of this ban, the Supreme Court heard arguments on the travel ban’s newest version.
In one sense, this case is a test of presidential authority. The challengers, including the state of Hawaii, argue that Trump overstepped what a president is allowed to do under federal immigration law and under the First Amendment, which forbids the government from disfavoring any religion. But because the Constitution also assigns to the legislative branch the responsibility to “establish a uniform rule of naturalization,” this is also a case about congressional responsibility and one of the central principles of constitutional law: the nondelegation doctrine, established by the Supreme Court nearly a century ago, that the legislature cannot pass on to a president a duty the Constitution clearly places on members of Congress. Simply put, it is up to Congress to set our country’s fundamental immigration policy.
And Congress has done exactly that, in the form of the Immigration and Nationality Act, passed by overwhelming majorities in both the House and Senate, that contains detailed “dos and don’ts” telling the president how to implement the fundamental policy. That law states clearly that the president may not stop individuals from immigrating to the United States on the basis of nationality alone. This is a problem for Trump’s travel ban, because it does precisely that for six of the seven countries it covers.
From imposing nationality-based blocks to demanding “a total and complete shutdown of Muslims entering the United States,” Trump’s attempted overhaul of our nation’s approach to immigration raises this question for the Supreme Court: Can a detailed law crafted by Congress to fulfill its constitutional responsibility allow fundamental changes to be made in immigration policy with a single stroke of a president’s pen?
The text of the statute says no: The president’s proposed ban collides with the statute itself. But the president’s lawyers say yes, and if they’re right, the attempted travel ban violates the Constitution.
Congress often leaves the details for implementing its fundamental policy choices to the president. But Congress cannot give up its constitutional responsibilities to set those policies to the president without providing a clear (or “intelligible”) principle to guide the implementation of those policies. What intelligible principle would the law have if it prevented nationality-based immigration restrictions but allowed Trump to impose nationality-based immigration restrictions? What intelligible principle would the law have if it required that emergency immigration restrictions be only temporary but allowed Trump to impose emergency immigration restrictions that are permanent? If the law is to be understood as Trump’s lawyers argue, then it stands for nothing at all and is an unconstitutional abdication of responsibility by the Congress — and the Supreme Court should say so. Whichever path the Court follows — the inability of Congress to surrender its constitutional obligations or the unconstitutional attempt to impose a nation-centered exclusion, Trump’s travel ban simply cannot survive.
Mickey Edwards, a former Republican representative from Oklahoma, is vice president and program director of The Aspen Institute.