by Mitch Kokai
Senior Political Analyst, John Locke Foundation
[T]he simple fact remains that Congress delegated breathtaking authority to the president. Here’s the relevant language:
“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.”
It’s fair to ask whether this statute is prudent (it’s not) or whether it represents an improper abdication of congressional authority (it does). But its scope is crystal clear. It can apply to “any” alien or “any” class of aliens, and for a time period defined entirely by the president. It is difficult indeed to look at Trump’s travel ban and conclude that it doesn’t fall squarely within the bounds of this considerable delegation of authority.
The more liberal members of the Court were clearly troubled by the extraordinary scope of the statute and pressed the solicitor general with hypothetical questions involving an obvious abuse of authority (like an anti-Semitic president banning entry of Israeli nationals), but these hypotheticals mainly highlighted the flaws in the statute, not the illegality of Trump’s order. The statute really is that broad. It really can empower bad acts.
But it is not the Supreme Court’s job to police congressional enactments for prudence or to purge executive orders of any hint of impure motive. Today, a majority of the Court indicated that it was ready to do its real job — apply the law to the facts.