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Saturday, January 28, 2017

Do President Trump (and Executive Power in General) a Favor: Subject Trump's Incompetent EOs to Vigorous Judicial Review

Suppose you are a President inexperienced in policy-making and, therefore, prone to issuing sloppy decrees that result in politically embarrassing applications that you did not anticipate. Imagine that the law gives you unlimited power to issue such decrees -- giving you, in effect, enough rope to hang your own political career. Such an executive might be well-advised to embed in those decrees some quality control allowing some other entity -- say, courts -- to sand off the decrees' rough edges, "construing" these executive edicts to avoid egregiously absurd applications that might inflame the nation against the edict's author. The very inexperience of the President (or the incompetence of his advisers) makes it unlikely, however, that such a chief magistrate will have the foresight to install such safeguards into his decrees.

Today's controversy over Hameed Khalid Darweesh illustrates how executive power is threatened by ham-handed executive orders like Trump's immigration EO. Hameed Khalid Darweesh was initially confined at JFK Airport pursuant to Trump's EO and, after a lawsuit and the intervention of two congresspersons, subsequently released. The event was more or less a PR disaster for Trump -- and more such disasters surely lurk at airports and consulates across the globe.

After the jump, I will take a page from Jean Bodin's Six Livres de la République and argue that the courts' enforcing some version of the non-delegation doctrine to limit President Trump's executive orders might not only save President Trump from himself but also actually enhance executive power in general.

Mr. Darweesh is an Iraqi who served as an interpreter for the 101st Airborne Division and had received, in return for his service, a "special immigrant visa" (SIV) under the Kennedy-Lugar Refugee Crisis in Iraq Act, a 2008 law setting aside a few thousand visas for the thousands of Iraqis and Afghanis who put their lives on the line to help our troops. Despite his SIV, however, was detained at JFK Airport, because, as an Iraqi, he was covered by Trump's recent executive order excluding Iraqis, Yemenis, Syrians, Sudanese, Somalis, Libyans, and Iranians from being admitted to the United States, even if they have a visas or green cards.

As a matter of legal authority, Trump's EO stood on the apparently firm ground of 8 U.S.C. section 1182(f), a provision of a 1952 statute giving the President unlimited discretion to "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" if "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." As a matter of basic morality and political optics, however, Trump's EO is turning out to be shaky, because it lacks the basic safeguards and exceptions necessary to prevent manifest injustice.

Consider, for instance, the EO's bizarre absence of any exception for SIV holders. In Dante's Inferno, there is a special place in Hell for those who betray their friends -- Circle 9, to be precise, where Satan's three faces simultaneously eternally chew Brutus, Cassius, and Judas Iscariot as punishment for their betrayal of those who befriended them. A latter-day Dante might fashion a fourth satanic face to masticate Donald Trump after his excluding from this nation Iraqis who risked their lives to aid our soldiers as interpreters. The process by which SIVs are obtained is lengthy and grueling. Mr. Darweesh, like other SIV holders, had to submit piles of information and be personally interviewed by State Department employees, a process, given its length, that might be regarded as an instance of what Trump has called "extreme vetting." In 2013, only 20% of the allotted SIVs had been distributed, a decade after the war in Iraq began. Mr. Darweesh received his SIV only on January 20th of this year (ironically, the day that Trump was inaugurated), only to be trapped at JFK airport by this week's batch of EOs.

Putting aside simple decency, political self-interest makes it unlikely that Trump would want to suspend entry of such a person. The ridiculous injustice of Darweesh's predicament invited Trump's opponents to pounce. Representatives Jerry Nadler and Nydia Velasquez appeared at JFK to demand Mr. Darweesh's release. The detention of a dozen people in Mr. Darweesh's situation inspired a demonstration of immigrant advocates outside of JFK's terminal 4. Customs has released Mr. Darweesh and may yet release the others trapped in the terminal -- but what about SIV holders who have not yet made it to a port of entry? Or others who have equally strong grounds for entry? Trump's EO traps green card and other visa holders who happen to be abroad, separating them from their families, their homes, their universities where they are lawfully enrolled, or their jobs where they are lawfully employed. From the point of view of sheer political self-interest, these consequences of Trump's EO are not just crimes but PR blunders.

Is there any way that our courts can help out our hapless President by confining his discretion through the magic of judicial interpretation and thereby saving him from himself? Consider a revival of the non-delegation doctrine, at least as a strong canon of interpretation. Section 1182(f), a McCarthy Era measure, provides a good illustration of the sort of unlimited delegation that is destroying Trump's presidency only a week into his term. President Truman compared the 1952 bill to "the infamous Alien Act of 1798, passed in a time of national fear and distrust of foreigners," because, like the 1798 law, the 1952 law gave the executive branch excessive discretion to deport aliens without hearings or standards, discretion that Truman decried as "inconsistent with our democratic ideals."

Such presidential discretion is, in the hands of an incompetent like Trump, a recipe for political calamity. Why not, then, read section 1182(f) narrowly, using some combination of Kent v. Dulles and the Benzene Case? Using such authorities, a court might reason that, to the extent that section 1182(f) deprives current visa holders of a right of entry without any standards or due process, the 1952 delegation constitutes an unconstitutional delegation of legislative power. Under such a reading, the visa holders would be entitled to some sort of hearing before they were barred from entering the country that might very well be their home.

Taking a page from Jean Bodin, one might argue that such judicial limits, from from hampering the President, actually protects executive power from the blowback that comes with the ham-handed centralized imposition of penalties. As Jean Bodin noted in Book IV of his Six livres de la République, a smart despot will delegate the task of imposing burdens to subordinate magistrates:

[T]he prince who wishes to command the affection of his subjects should reserve to himself the distribution of rewards...[b]ut for condemnations, fines, confiscations, and all like penalties, let him delegate their infliction to his officers, for them to administer good and expeditious justice. If he manages his affairs in this way, those who have received benefits at his hands are constrained to love, respect, and honour their benefactor; those who have been punished will have no occasion to hate him, but will vent their anger on their judges. The prince, showering benefits on all, but injuries on none will be welcome to all and hated of none.

If one really wants to preserve executive power, in other words, one will design delegations to insure that the chief executive is insulated from responsibility for imposing punitive burdens. Construing executive orders to preserve some sort of case-by-case discretion by subordinate bureaucrats is one such type of insulation. If Trump is not smart enough to figure this sort of thing on his own, perhaps the judiciary should help him out. Fans of executive power such as Jean Bodin (or Adrian Vermeule and Eric Posner) ought to cheer them on, because nothing is calculated to bring the Executive Unbound into faster disrepute than President Trump's unhampered exercise of legislative power.

Posted by Rick Hills on January 28, 2017 at 03:49 PM | Permalink


"far from" I assume, rather than "from from"

Posted by: AndyK | Feb 13, 2017 11:20:45 AM

One should not be so quick to assume the broad wording of Trump's EO's are the product of incompetence. I suspect he knows full well how to properly vet EO's through White House counsel, etc. He simply doesn't care. And neither does the voting public. And neither, apparently, did Mr. Darweesh, who openly admitted that he likes Trump, much to the dismay of news reporters looking for a victim story that could be damaging to Trump. The hyperventilation among legal types on this has the appearance of ambulance-chasing.

Clearly, Trump is following George S Patton's maxim that a good plan today is better than a perfect plan next week, and taking bold action when he can, leaving the legalistic particulars for later. He is the executive, and that is what the executive does.

Posted by: M. Rad. | Jan 29, 2017 11:35:28 PM

Marty, the hyperlink should take you to Truman's veto message. You are absolutely right that Truman was referring too the broad discretion given to the AG to deport, not to the provision conferring broad discretion on him to exclude. But his argument was that the delegation was just as unconstitutional as the 1798 delegation to the President, so I think that his objection applies equally well to the presidential power to suspend entry.

Congress did indeed override his veto.

Posted by: Rick Hills | Jan 29, 2017 11:23:56 AM

Rick: Hard to tell in the absence of citations, but I think the Truman analogy to the Alien Act was with respect to a different provision of that bill. Did Congress override his veto then?

Posted by: Marty Lederman | Jan 29, 2017 11:13:40 AM

One can envision, in the not too distant future, the Constitutional confrontation when President Trump directs either civilian federal employees or perhaps members of the uniformed services to defy the orders of a federal judge with whom the President disagrees.
With regards to the standing issue, I just don't see the federal judiciary providing any flexibility. The Roberts court certainly has constrained standing in the past few years.

Posted by: Paul | Jan 29, 2017 2:12:45 AM

Might a suggest a thread on PrawfsBlawg for discussing how law schools across the country are responding to the recent spate of Executive Orders and other actions? It would be helpful to exchange information on how schools are responding, both as institutions that may have a role to play in defending the rule of law, and as institutions that have a responsibility to respond to the growing sense of disorientation and bewilderment among our students. Thanks.

Posted by: Craig Martin | Jan 28, 2017 8:10:24 PM

I like your idea, but I think cabining Trump will require more. Namely, cutting back on the applicability of the political question doctrine and loosening up standing limitations. Both mostly represent constitutional charades anyway, pseudo-formalistic ways of justifying abdication of responsibility by the already least dangerous branch.

Posted by: Edward Cantu | Jan 28, 2017 6:45:01 PM

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