Extra concepts on restore and broaden the rule of legislation


Like co-blogger Jonathan Adler, I was very impressed by Paul Rosenzweig and Vishnu Kannan's recent article on "Repairing the Rule of Law: A Post-Trump Agenda". I agree with almost all of their proposals, with the possible exception of DC statehood. I don't have strong views on the latter in either case, although I agree with Jonathan's comment that it's not really a matter of the rule of law. Jonathan rightly points out that these reforms (and those that Jonathan himself adds to the list) are worth continuing regardless of who wins the November elections. Most of them deal with issues that are not unique to Trump, even if his term in office has highlighted its importance.

I would add two more points to those suggested by Rosenzweig, Kannan, and Adler. Both are also issues that lie ahead of Trump and are likely to outlive him, although his abuses of power have highlighted their importance:

  1. Eliminate virtually unlimited executive power over trade and immigration – and possibly other areas as well.

As currently interpreted by the Supreme Court, the law gives the President the power to impose virtually any immigration or trade restriction he wishes for virtually any reason. This is both bad politics and deeply damaging to the rule of law. I have discussed these issues in more detail here, here and here, with regard to immigration, and trade here.

More recently, a similar problem has emerged from the Trump administration's claim that the Center for Disease Control has virtually unlimited powers to make regulations that could in any way reduce the spread of infectious diseases (which in effect means the ability to do almost any to suppress or limit activities of any kind).

As discussed in various pieces linked above, this can be achieved through stronger judicial enforcement of nondelegation doctrine. However, this can also be achieved by having Congress pass laws that withdraw or repeal the relevant laws. I suspect we will eventually need a combination of both. When claims are unlimited

2. Subject immigration restrictions to the same constitutional restrictions as those that apply to other federal laws.

As detailed in my October 2019 Atlantik article on the matter, the current Supreme Court precedent largely exempts immigration restrictions from most of the constitutional restrictions that apply to virtually all other exercises of federal power. This enables the President and Congress to engage in otherwise unconstitutional discrimination based on religion, ethnicity, and political language, and to free the detention and deportation of immigrants from the appropriate procedural restrictions that govern other serious imprisonment. The effect of this double standard is both a threat to the rule of law, which has no basis in the text or in the original meaning of the Constitution, as well as a slew of injustices (including many injustices affecting both US citizens and potential immigrants).

Eliminating double standards would not end all immigration restrictions. Far from it. However, it would eliminate the use of unconstitutional discrimination and subject enforcement action to the same types of procedural restrictions that we take for granted in other areas of law.

As with nondelegation, the elimination of the constitutional double standards of immigration law can be accomplished through a combination of court decisions to reverse or curtail relevant precedents and actions by Congress. The no-ban law proposed by the Congress Democrats would be a good start on the latter front. This would impose important new restrictions on both discrimination and delegation in the context of immigration.

Much more can be said on both of these issues and on the broader issue of strengthening the rule of law. I am grateful to Paul Rosenzweig, Vishnu Kannan, and Jonathan Adler for initiating this much-needed discussion that I hope will continue over the next few months and beyond.



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