In my previous post on Trump's massive new travel ban, I noted that the Supreme Court's badly flawed ruling in Trump v. Hawaii (2018) probably precludes challenges based on discriminatory intent. But I also noted there is an alternative path to striking down the new travel ban: nondelegation doctrine. That path remains open because Trump v. Hawaii did not consider nondelegation issues; indeed the word "nondelegation" isn't even mentioned in any of the majority, concurring, and dissenting opinions in that ruling. In this post, I outline how it can be done.
The basic idea is very simple. The Supreme Court has held that there must be at least some limit to congressional abdication of legislative power to the executive. If anything violates that constraint, unlimited delegation of a major power does so. That's exactly what two federal courts recently held in striking down Trump's assertion of virtually unlimited power to impose tariffs.
