In the aftermath of the Supreme Court’s decision in Trump v. Hawaii, the travel ban or Muslim ban case, it is unfortunately necessary to engage—or continue to engage—in the process of assigning blame.
Starting during the presidential campaign and continuing into his presidency, Donald Trump gave much reason to fear that he had “animus,” to use the Court’s doctrinal term, towards people of the Muslim religion, and had embodied that animus in the travel ban, the third iteration of which the Court just upheld. Justice Kennedy’s concurrence in Trump v. Hawaii referred to an “anxious world” wondering whether the U.S. government led by President Trump “remains committed always to the liberties the Constitution seeks to preserve and protect.” The majority opinion by Chief Justice Roberts pointedly referred to moments when prior U.S. Presidents had embraced Americans of the Islamic faith, and then noted that some other unnamed President or Presidents have “performed unevenly in living up to” the ideals of “religious freedom and tolerance on which this Nation was founded.” The Court also repeated without rebuttal the plaintiffs’ contention that “this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition.”
It seems, then, that few doubt that President Trump has espoused religious intolerance inconsistent with constitutional principles. This President’s words and actions caused both the Chief Justice and Justice Kennedy to remind him that he took and is bound by the presidential oath found in Article II of the Constitution—that he must “faithfully execute the office of President of the United States and . . . preserve, protect and defend the Constitution.” As some commentators have noted, it is not clear that this President is capable of living up to that oath. A bad-faith President puts enormous pressure on the other two branches of government.
And so many, including dissenting Justices Sotomayor and Ginsburg, blame the majority of the Court for failing to declare unconstitutional the travel ban. The Ninth Circuit opinion under review had held that the President’s proclamation embodying the third iteration of the travel ban exceeded his authority under immigration statutes. But notably, not a single Justice defended this position. For reasons well explained by the Court’s majority opinion, the plaintiffs’ statutory arguments were implausible. As the Court correctly described it, Congress’s delegation of authority to the President was “comprehensive” and “exudes deference to the President in every clause.” The statute allows the President to make his own determination “that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States,” and then to suspend their entry “for such period as he shall deem necessary” or impose any “restrictions” on their entry “he many deem to be appropriate.”
The Court has previously made clear that there are essentially no limits from the non-delegation doctrine on congressional grants of authority to the President to address foreign affairs and national security matters. Faced with a sweeping delegation of power by Congress to the President that, fairly read, authorized the travel ban, the sole real hope for the challengers was that a majority of the Court would apply domestic Establishment Clause case law in an unprecedented way to strictly scrutinize the motivations for the President’s decision to exclude non-U.S. citizens from certain countries—a decision embodied in a facially neutral proclamation, vetted by the Departments of Justice, State, and Homeland Security, that invoked plausible—though perhaps not excessively plausible—national security reasons. That was a lot to ask of the Court, and it is unsurprising that the Court did not deliver.
So let’s not forget Congress when assigning blame. Starting in the twentieth century, and increasing during the pressures of the Cold War and then the war on terror, Congress has enacted in the national security and foreign affairs area “a scheme of extraordinarily open-ended legislative delegation that probably exceeds any other area of American governance.” The section of the Immigration and Nationality Act which authorized the travel ban was enacted in 1952. Other extremely broad delegations of authority to the President include the 1977 International Economic Emergency Powers Act, the “vague” and “far-reaching” terms of which have authorized a vast range of presidential actions; the post-9/11 Authorization for the Use of Military Force, which has been stretched by three Presidents to justify wide-ranging counter-terrorism activity around the globe and at home; and the Trade Expansion Act of 1962 and Trade Act of 1974 which authorize the executive to raise or lower tariffs on imports for undefined national security reasons—power that the Trump administration just deployed against Canada and other countries.
A President like Trump, armed with the extremely powerful tools Congress has given him, cannot be effectively restrained without the active participation of Congress. When motivated to do so, Congress can act to either pull back delegated authorities or constrain their uses. One example is the Countering America’s Adversaries Through Sanctions Act, passed in the summer of 2017 with bipartisan, veto-proof margins, which, among other things, made it very difficult for the President to relax sanctions and fail to impose additional sanctions on Russia.
But Congress will probably maintain its practice of very broad delegations. The reasons why Congress delegates so much to the President in the foreign affairs and national security area are well known and generally reasonable. They include the difficulty of predicting in advance what foreign actors will do and how it would be best for the United States to respond; the perceived dangerousness of modern foreign adversaries and their destructive capabilities; the President’s greater access to information about the state of the world; and the structural unity of the executive branch which allows it to deliberate more secretly and act more quickly and decisively.
One takeaway from the Court’s decision in Trump v. Hawaii is that Congress could and should consider ways to better cabin and channel delegated power. Legislative vetoes are not available, but Congress has many other tools—such as requirements of more specific findings before delegated power can be exercised, sunset provisions to force reconsideration of delegations, active oversight of how delegated authority is used, using the Senate’s appointments check to push for reasonable and competent nominees to lead executive departments and agencies, and withholding funding for problematic uses of delegated authority.