On Sept. 24, 2017, President Trump signed a proclamation, better known as “travel ban 3.0,” which would have denied entry to aliens from six predominantly-Muslim nations. In doing so, he invoked “the authority vested in me by the Constitution and the laws of the United States of America.” In previous iterations of the travel ban, the president also cited both sources of power: constitutional and statutory. Several courts have ruled that the Immigration and Nationality Act (INA) does not give the president the statutory power to implement the travel bans. Yet, none of these courts engaged with the far more pressing question: Does Article II give the president the inherent power to issue the proclamation?

In his concurring opinion to the Fourth Circuit’s en banc opinion, handed down on Feb. 15, 2018 Chief Judge Roger Gregory answers this question in the negative. He finds that the president had neither the constitutional nor the statutory authority to issue the proclamation. Other judges on the Fourth Circuit resolved the case entirely on statutory grounds through the application of the avoidance canon. The Ninth Circuit had earlier punted on the constitutional question. For the courts to hold that the president’s power to exclude can only be traced to delegations from the INA is to hold that the president has no inherent power in this arena. Failing to address this question, through the avoidance canon or otherwise, is tantamount to denying this power exists in the first place.

I commend Gregory for recognizing the necessity of addressing both grounds of authority cited by the president in the proclamation. I have long contended that the Supreme Court will not resolve this case on the basis of the establishment clause but on the basis of the separation of powers. This post will address the interaction between the travel ban, Article II powers, and the nondelegation doctrine.

Does Knauff Recognize an Inherent or Exclusive Power?

In December, the Ninth Circuit ruled that the president lacked the statutory authority to implement travel ban 3.0. However, in a fairly brief portion of the opinion, the court concluded that “the President lacks independent constitutional authority to issue the Proclamation, as control over the entry of aliens is a power within the exclusive province of Congress.” The Ninth Circuit cited three cases to support this conclusion, none of which concerned the President’s inherent powers to deny entry to aliens. As I noted on Lawfare, the court ignored the most relevant precedent, United States ex rel. Knauff v. Shaughnessy (1950), which addressed the interaction between the president’s inherent authority over entry and Congress’s rules concerning naturalization.

To his credit, Gregory, in his concurring opinion to the en banc Fourth Circuit’s opinion, cites Knauff several times. Yet his reading is incomplete.

In Knauff, Congress delegated to the president the power to “impose additional restrictions and prohibitions on the entry into and departure of persons from the United States during the national emergency proclaimed May 27, 1941.” Pursuant to this statute, the president issued a proclamation, which “provided that no alien should be permitted to enter the United States if it were found that such entry would be prejudicial to the interest of the United States.” (This statutory regime bears similarities to the 8 U.S.C. §1182(f), which President Trump cited as the basis of the travel ban.) Knauff was denied entry on the basis to regulations that were promulgated under this statutory regime, and the proclamation.

At 338 U.S. 542 of the controlling opinion, Justice Sherman Minton explained the nature of the president’s inherent power to exclude aliens:

The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation. United States v. Curtiss-Wright Export Corp (1936); Fong Yue Ting v. United States (1893). When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power. (emphases added).

The citation to Curtiss-Wright is important. In this 1936 case, Congress delegated to the president the power to ban arm sales in Latin America. While such a criminal prohibition might otherwise be viewed as a legislative act, the court upheld the delegation. Justice George Sutherland explained:

It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution. (Emphasis added.)

This passage from Curtiss-Wright is very similar to the quoted passage from Knauff, except for one very important difference in terminology. Curtiss-Wright spoke of an “exclusive power,” while Knauff spoke of an “inherent executive power.” What’s the difference? An “inherent” powers allow the president to act, even if Congress has not delegated the authority to do so. Such an action could survive Justice Robert Jackson’s second tier of Youngstown. Congress can place certain limitations on an “inherent” power, which need not be “exclusive.”

However, an “exclusive” power is one that the president and the president alone can exercise. Congress lacks the authority to limit that “exclusive” power. Such an action would likely survive the third tier of Youngstown. “Courts can sustain exclusive Presidential control in such a case,” Jackson wrote, “only be disabling the Congress from acting upon the subject.” For an example, Jackson cited the president’s “exclusive power of removal in executive agencies” that was upheld in Myers v. United States (1926). There are other examples. Curtiss-Wright upheld the “plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations.” And most recently, Zivotofsky v. Kerry (2015) recognized an “exclusive” power of the president to “recognize foreign nations and governments.” (As Jack Goldsmith observed, though the “majority in Zivotofsky II appeared to distance itself from some aspects of Curtiss-Wright,” it did not “repudiate” the decision.)

Did the Knauff court mean to suggest that the president’s power to exclude aliens was “exclusive” as in Curtiss-Wright, or merely “inherent”? If it is “inherent,” the power to exclude aliens inheres in the president by virtue of Article II, regardless of whether Congress has delegated any authority and regardless of whether there is a declared war, or some sort of national emergency. With such an authority, Congress would retain the right to constrain that power. If it is “exclusive,” the power to exclude belongs to the president alone, and Congress cannot impose any limitations on the entry of aliens into the United States.

For purposes of the travel ban case, it does not make a difference whether the power is “inherent” or “exclusive,” because the president prevails either way. Pursuant to 8 U.S.C. §1182(f), Congress has in fact given the president the plenary authority to “suspend the entry” of “aliens” if their “entry” would be “be detrimental to the interests of the United State.” This delegation works in either fashion: as a recognition of an “exclusive” power under Curtiss-Wright or as a recognition of an “inherent” power that is shared with Congress.

In contrast, Congress has prohibited nationality-based discrimination with respect to the issuance of immigrant visas. Here, Congress’s enumerated power over naturalization is plenary, and the president has neither an exclusive, nor an inherent power to rely on. As I’ve noted since the outset of this litigation, there is an important distinction between the power to deny entry (the president’s inherent power) and the power to issue visas (Congress’s plenary power). The government has sought to resolve this tension in this fashion: People who are subject to an entry ban should not be issued a visa, for such an act would be futile. The court could disagree with this distinction and find that the proclamation violates the INA’s prohibition on nationality-based discrimination with respect to immigrant visas. (With respect to the executive power to deny immigrant visas on the basis of nationality, see my discussion of the saving construction.) That holding would still permit nationality-based discrimination for non-immigrant visas. But such an opinion would not reach the conclusion that Chief Judge Gregory did: that the president lacks such an inherent power altogether.

The Power to Exclude Recognized in Knauff was not limited to “A Time of National Emergency”

Gregory dismisses this reading of Knauff, under which the president has an “inherent” power to exclude. He wrote:

One might misconstrue some language in Knauff to say that delegating immigration power can never violate nondelegation given the executive’s inherent powers. See 338 U.S. at 542–43. However, Knauff upheld a delegation of broad discretion because that discretion was to be exercised only “during a time of national emergency.” Id. at 543 (“Congress may in broad terms authorize the executive to exercise the power, e.g., as was done here, for the best interests of the country during a time of national emergency.”). Whatever the President’s inherent powers during war or national emergency, it does not follow that he has the same powers under ordinary circumstances. (Emphasis added.)

We can quibble whether the power identified in Knauff recognized an “inherent” or an “exclusive” power. The quoted sentence on 338 U.S. 543, however, does not support the conclusion that this power can “be exercised only ‘during a time of national emergency.’” Justice Minton’s analysis lacks that qualifier:

Thus the decision to admit or to exclude an alien may be lawfully placed with the President, who may in turn delegate the carrying out of this function to a responsible executive officer of the sovereign, such as the Attorney General. The action of the executive officer under such authority is final and conclusive. Whatever the rule may be concerning deportation of persons who have gained entry into the United States, it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien. Nishimura Ekiu v. United States; Fong Yue Ting v. United States; Ludecke v. Watkins. Cf. Yamataya v. Fisher. Normally Congress supplies the conditions of the privilege of entry into the United States. But because the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power, e.g., as was done here, for the best interests of the country during a time of national emergency. Executive officers may be entrusted with the duty of specifying the procedures for carrying out the congressional intent. (Emphasis added.)

It is not the case, as Chief Judge Gregory writes, that this power can be exercised “only ‘during a time of national emergency.’” Not at all. Instead, Congress “may”—and that’s the key word, may—“during a time of national emergency” choose to delegate such authority, as it did so in Knauff. The Court was not discussing when the President could exercise the power, but when Congress may choose to delegate that power. Gregory gets it entirely backwards. In any event, Minton explains earlier at 338 U.S. 542 that the “exclusion of aliens” is an “inherent executive power.” Full stop. Gregory does not quote this section of the opinion. He merely critiques those who “might misconstrue” it.

To be even more precise, the quoted passage speaks only of a “national emergency,” not “war.” The latter qualifier about “war” was a gloss added by Gregory. And, as I noted in an earlier post, there is still a lingering question about whether the 2001 and 2002 authorizations for use of military force could bolster the case that such a “national emergency” exists. Indeed, the proclamation itself explains that its purpose is to “address both terrorism-related and public-safety risks.” (emphasis added). Gregory’s incomplete treatment of this question undercuts his analysis.

Later, Gregory writes “no one has identified a single case adopting what would be an astonishing view of inherent executive power.” That case is Knauff itself. Additionally, I found several decisions that cited Knauff for that exact proposition. See e.g., Defs. of Wildlife v. Chertoff, 527 F. Supp. 2d 119, 129 (D.D.C. 2007) (“The construction of the border fence pertains to both foreign affairs and immigration control—areas over which the Executive Branch traditionally exercises independent constitutional authority.”); Encuentro Del Canto Popular v. Christopher, 930 F. Supp. 1360, 1365 (N.D. Cal. 1996) (“President Reagan enacted Proclamation 5377 based partly on his inherent Constitutional authority to do so”); Haitian Refugee Ctr., Inc. v. Gracey, 600 F. Supp. 1396, 1400 (D.D.C. 1985) (“In addition to statutory authority, the President has implied constitutional power under Article II of the Constitution to suspend entry of certain groups of aliens”). Admittedly, this issue does not come up often—because immigration decisions of this sort are generally not subject to review—but other courts have given Knauff the reading that the government and I have. In contrast, I could not find any opinions (before the instant litigation) that support Gregory’s cramped reading. The concurring opinion fails in its effort to read a “national emergency” requirement into the president’s exercise of his own inherent powers.

Finally, Gregory is mistaken to assume that the president’s “inherent powers” fluctuate during a time of “war or national emergency.” To the contrary, the very nature of an inherent power is that the president has it, regardless of whether or not Congress takes action, such as with a declaration of war, or the delegation of some other authority. The essence of an inherent power under Article II, is that it can be exercised unilaterally, regardless of the situation. What does fluctuate, however, are delegations of authority from Congress. This premise illustrates Jackson’s framework in Youngstown. At all times, the president can rely on his own inherent powers. What determines whether the actions falls in the first, second, or third zone, is whether Congress has delegated additional powers to the president. If Congress has so delegated, the action falls in the first tier. If Congress has withheld such powers, the action falls in the third tier. But even if the president is acting at the “lowest ebb” of his authority—that is, he relies only on his own executive powers (perhaps those of the “exclusive” type), or Congress has forbidden him from taking such an action—the president can still prevail.

Such was the case in Zivotofsky v. Kerry (2015). Congress passed a bill that ordered the State Department to update passports for U.S. citizens born in Jerusalem, with Israel listed as the place of birth. President Bush, who signed that bill into law, refused to comply, citing his inherent constitutional authority over recognition. He, and not Congress, could decide what the capital of Israel was. President Obama continued that practice. The Supreme Court upheld that exercise of authority, even though it was properly considered in Jackson’s third tier. Congress forbade the president from doing something, and he did it anyway, relying solely on inherent powers. That is, the Article II “exclusive” power trumped the statutory regime.

To the extent that Knauff remains good law, the president has this inherent power to exclude aliens. , hen 8 U.S.C. §1182 is fairly read, Congress has in fact recognized that the president already has this power. It provides:

Whenever the President finds 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, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

I have long read this provision as merely an affirmation of the power the president already had—the inherent power recognized in Knauff. Gregory reads it differently. He writes that this is a mere “gap-filling provision that empowers the President to exclude (1) foreign nationals whose individual conduct or affiliation makes their entry harmful to national interests for reasons unanticipated by Congress and (2) foreign nationals in response to a foreign-affairs or national-security exigency.” Neither of those criteria are present in the statute, and should not be read into an area where the president enjoys broad powers..

That Gregory misread Knauff is easy enough to demonstrate. Far more important is to explain why he felt compelled to draw this conclusion: If Knauff is read fairly, then President Trump has the inherent power to exclude aliens, and the remainder of this statutory analysis topples. In other words, whether or not Congress gave him such authority, he could exercise it; that Congress in fact delegated it is icing on the cake.

Panama Refining Revisited

Gregory’s discussion of the president’s constitutional powers relies on an incomplete analysis of Knauff. His discussion of the president’s statutory powers, however, relies on an incomplete analysis of the twentieth century.

Constitutional law students are taught to separate decisions of the Supreme Court from before and after 1937. While the myth of the “switch in time that saved nine” has been dispelled, 1937 still serves as a inflection point in the Supreme Court’s approach to the due process clause, the commerce clause, the taxing power, federalism, and, as relevant here, the nondelegation doctrine.

Article I, Section 1 of the Constitution, provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” Congress cannot surrender its “legislative Powers.” It can, however, delegate certain authority to the executive branch, so long as there is sufficient guidance—known as an “intelligible principle”—of how that power is to be exercised. Under the nondelegation doctrine, in theory at least, courts can invalidate laws that cross the line from mere delegation to surrender. I add the modifier in theory, because since 1937, the Supreme Court has ceased enforcing this line.

Justice Antonin Scalia’s majority opinion in Whitman v. American Trucking Associations (2001) summarizes the doctrine well:

In the history of the Court we have found the requisite “intelligible principle” lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring “fair competition.” See Panama Refining Co. v. Ryan (1935); A.L.A. Schechter Poultry Corp. v. United States (1935). . . . In short, we have “almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.” Mistretta v. United States (1989) (SCALIA, J., dissenting); see id., at 373, 109 S.Ct. 647 (majority opinion).

Scalia identified only two decisions where the court found a violation of the nondelegation doctrine: Panama Refining Co. v. Ryan (1935) and Schechter Poultry Corp v. United States. Professor Cass Sunstein quipped that 1935 was “the conventional nondelegation doctrine’s only good year.” But that does not mean the nondelegation doctrine is dead. Instead, through what Sunstein referred to as the “nondelegation canons,” courts have narrowly construed delegations of authority to avoid raising serious constitutional questions. (In the Harvard Law Review, I discussed one such canon, known as the “major question” doctrine, at pp. 260-265.) It is in this nature of avoidance that Chief Judge Gregory invokes the non-delegation doctrine. That much is not problematic (at least to this anti-administrativist). What’s problematic, is that he uses Panama Refining Co. as the proper test for his analysis. He wrote:

The INA provisions invoked by the Proclamation are similar in critical respects to the statute at issue in Panama, which the Court invalidated on nondelegation grounds. See 293 U.S. at 414–15, 430 (invalidating statute that gave the President discretion to prohibit petroleum in interstate and foreign commerce because decision was “obviously one of legislative policy,” and Congress did not provide standards to guide President’s exercise of discretion). Congress, in both instances, delegated the power to suspend movement of people or goods in commerce. According to the Government, the INA simply authorizes the President to do whatever he believes best, which means that the only source of guidance derives from the President himself, not Congress. In terms of direction from the legislature, such a “requirement” may as well be nonexistent, as was the case in Panama.

I did a double-take when I read this. Was a circuit judge actually relying on a pre-New Deal precedent concerning the nondelegation doctrine? Granted Panama Refining has never been overturned. And in NFIB v. Sebelius (2012), the court favorably cited another pre-New Deal opinion concerning the taxing power, Bailey v. Drexel Furniture Co. (1922). But the so-called Child Labor Tax Case had not been eroded by decades of precedent (an issue that many in the professoriate overlooked in their defense of the Affordable Care Act’s individual mandate). The rule in Panama Refining, however, has been interred. Sunstein wrote that Panama Refining “is a controversial ruling, fitting poorly with post-World War II decisions, and it is most unlikely that the Court would follow it today.” He was right. And were it not true when Sunstein wrote his article in 1999, Scalia’s opinion in Whitman proved Sunstein unquestionably correct.

Let’s consider 8 U.S.C. §1182(f) once again to ascertain whether it has an “intelligible principle”.

Whenever the President finds 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, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. (Emphasis added.)

There is, without question, an intelligible principle for the president to apply: The entry of the aliens must be “be detrimental to the interests of the United States.” Perhaps to a student of the English language, this delegation would seem open-ended and capacious. What does “detrimental” mean? What are the “interest of the United States”? How long does “he shall deem necessary” last? But, under the Supreme Court’s precedents, this statute is well within the boundaries of permissible delegations. This statute is far less vague than other standards that the court has upheld over the past seven decades. Scalia offered several of examples in Whitman:

We have, on the other hand, upheld the validity of § 11(b)(2) of the Public Utility Holding Company Act of 1935, 49 Stat. 821, which gave the Securities and Exchange Commission authority to modify the structure of holding company systems so as to ensure that they are not “unduly or unnecessarily complicate[d]” and do not “unfairly or inequitably distribute voting power among security holders.” American Power & Light Co. v. SEC (1946). We have approved the wartime conferral of agency power to fix the prices of commodities at a level that “‘will be generally fair and equitable and will effectuate the [in some respects conflicting] purposes of th[e] Act.’” Yakus v. United States (1944). And we have found an “intelligible principle” in various statutes authorizing regulation in the “public interest.” See, e.g., National Broadcasting Co. v. United States (1943) (Federal Communications Commission’s power to regulate airwaves); New York Central Securities Corp. v. United States (1932) (Interstate Commerce Commission’s power to approve railroad consolidations).

If the court upheld delegations which only asked the executive branch to determine if a regulation was in “the public interest,” then it is perfectly permissible for a delegation to ask the president to determine if an alien is “detrimental to the interests of the United States.” Without question, such a determination is within the president’s expertise and competency. Further Curtiss-Wright still stands for the proposition that courts should read delegations in the foreign-policy context in a generous fashion. And it is no answer to say that immigration is a large area of concern that is part of a complicated regulatory scheme. Several of the cases Scalia cited concerned significant areas of activity, including the public airwaves and the railroads. And here, Congress has spoken with clarity that it “it wishes to assign to [the President] decisions of vast ‘economic and political significance.’” Utility Air Regulatory Group v. EPA (2014).

On page 99 of his opinion, Gregory briefly cites Whitman, but he omits its rejection of Panama Refining. And in a footnote, he parries Whitman with a favorable citation to Panama Refining. This opinion fails to grapple with, and indeed brushes over, the sea change in constitutional law since 1937.

As an outed anti-administrativist, I write this post with the slightest regret. I would relish the court’s reinvigorating the nondelegation doctrine. Indeed, Justice Neil Gorsuch has hinted that he is inclined to do so. But this is not the right case for that. Why? The president here is not only acting with an intelligible statutory delegation, but he is also acting pursuant his own inherent executive powers. This latter authority renders the nondelegation doctrine largely irrelevant. As I explained in my prior post, under this analysis, “there cannot be a violation of the nondelegation doctrine, because Congress is not delegating legislative power at all.”

If the court wants to breathe life into Panama Refining and Schechter Poultry, let it start with a mundane statute regulating an inconsequential segment of the American economy, not national security. And without question, it is up to the Supreme Court, and not a concurring circuit court opinion, to restore the lost Constitution. It is no surprise that none of Gregory’s colleagues joined him. In any event, I am grateful that he wrote the opinion he did, which lays bare why the statutory analysis is so fraught.

***

In my very first post for Lawfare, I explained why the first iteration of the travel ban was within the president’s statutory and constitutional authority:

President Trump’s executive order does not wallow in [Justice] Jackson’s third tier [of Youngstown], nor does it linger in the so-called “zone of twilight.” Through §1182(f) Congress has, with unequivocal language delegated its Article I powers over immigration to the President. In Trump’s own words—as a relevant statement about the scope of his constitutional authorities—it “couldn’t have been written any more precisely.” Further, as a matter of inherent Article II authority, even in the absence of any statute, the President could deny entry to the United States of those he deems dangerous. As a result, the President was acting pursuant to an amalgamation of Article I and Article II powers, combined. Here, Jackson’s first tier provides the rule of decision

I stand by this framework, and I predict that the question of Article II authority will undergird the Supreme Court’s final resolution of the case. That Chief Judge Gregory had to disregard much of Knauff, to say nothing of the twentieth century, reaffirms the strength of the government’s position on this fundamental question.

Cross-Posted at Lawfare