COVID Lockdowns At The Border

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This teleforum will examine the president's use of travel bans during the SARS-2 pandemic  Two of the nation's top experts in immigration law--Professor Ilya Somin of the Antonin Scalia Law School at George Mason University and Chris Hajec of the Immigration Reform Law Institute--will present their views of the law and policy in this area while also taking questions from the audience.


Christopher Hajec, Director of Litigation, Immigration Reform Law Institute

Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University


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Event Transcript



Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at



Nicholas Marr:  Well, welcome, everyone to this Federalist Society Teleforum conference call. And this afternoon, June 8, 2021, we're having a discussion on COVID lockdowns at the border. I'm Nick Marr, Assistant Director of Practice Groups here at The Federalist Society. As always, please note that expressions of opinion on today's call are those of our experts.


      We're very pleased to be joined by two immigration law experts here. They know their fields very well, and we're going to have a great discussion about the topic. I'll introduce them briefly before handing it over to our first speaker.


      So we're very pleased to be joined this afternoon by Mr. Christopher Hajec. He's Director of Litigation at the Immigration Reform Law Institute. We're also joined by Professor Ilya Somin, who's a Professor of Law at George Mason University's Antonin Scalia Law School. Now, Professor Somin's going to go first. Their bios are shortened for the purposes of this call. If you'd like to learn more about their work, please visit our website, and on this event page you'll find more about their works. With that, Professor Somin, thanks very much for being with us. The floor is yours.


Ilya Somin:  Thanks to The Federalist Society for organizing this event and for everybody who's listening. Today, we're going to talk about the various measures enacted by the Trump Administration, and some of them continued by the Biden Administration for the purpose that we see, the ostensible purpose of controlling the spread of COVID. These measures fall into three categories.


      One is an order by President Trump which barred nearly all immigration by people seeking permanent residency in the U.S., with a few exceptions. A second, severely restricted H-1B and most other employment visas -- people coming in for -- temporary workers. And finally, the so-called Title 42 expulsions at the border, which this is the only one that is still continuing under the Biden Administration, at least so far. I'm going to suggest that all three of these measures were ill-advised and harmful and also that all of them are legally dubious on various grounds. And they clearly failed to stop the spread of the COVID even though collectively, they imposed the most severe immigration restrictions in all of American history.


      The COVID, obviously, still got established in the United States and still caused nearly 600,000 deaths in this country. And to the extent that it is now being contained, it's obviously because of vaccinations, not because of anything that was done through immigration policy.


      So let's try to take a closer look at these three types of measures. First, the bar on virtually all migration for the purpose of entering to get permanent residency with a few exceptions such as certain close relatives of people who are already U.S. citizens. This was enacted by President Trump, using his authority under 8 U.S.C. § 1182(f), which allows the president to bar the entry of any alien who, "He decides that their entry is detrimental with interest to the United States."


      And by the time this was enacted, the COVID was already spreading in the United States. And to the extent that there was the possibility that people could become infected, there are other ways to prevent that other than by barring people entirely, such as adopting policies like the one adopted by South Korea, which did a much better job of containing COVID than the U.S. did where they simply allowed immigrants to come in as before but required a quarantine period of, I think, initially 14 days. Later, the CDC concluded that a much shorter quarantine would be sufficient.


      So, obviously, this was adopted. It lasted until early in the Biden Administration when President Biden rescinded it. And it pretty obviously completely failed in any effort, or any attempt, they might have made to prevent the spread of COVID. In fact, it may even be that this measure and the others containing the spread of COVID was not even the real motivation behind it, to begin with. Stephen Miller, President Trump's top immigration advisor, had said that he hoped and he intended to try to make these COVID measures permanent restrictions in immigration, not just temporary ones. And we know from media reports that had Trump won re-election, it is very likely that Stephen Miller and other administration officials would have tried to do exactly that.


      There is also an economic rationale for this measure, and also, the work visa measured the argument that it would prevent competition for jobs between immigrants and Americans. This sort of rationale is rejected by nearly all economists across the political spectrum because it assumes that zero of some model of the number of jobs, or somehow a fixed number of jobs in immigrant to natives, are competing with them. In reality, the number of jobs is not fixed, and immigration actually provides large economic benefits for natives, including the fact that immigrants start more businesses or start them at a higher rate than natives do.


      Immigrants also play a disproportionally valuable role in scientific innovation and medical innovation, and many other things that boost the economy. It's worth noting that both of the two major COVID vaccines that were first approved in the United States, the Pfizer vaccine and a Moderna one, they were both developed either by immigrants from poor third-world nations or, in one case, by the children of such immigrants. That such people had been kept out by this sort of policy that Trump enacted, we would still be in the midst of COVID with no end in sight because there would not be these vaccines. And the same thing is true for a great many other medical and scientific innovations over time.


      Economists do recognize that there is some job competition between some types of immigrants and workers. The biggest effect is with high school dropouts, but there are ways to have more targeted approaches to that narrow problem than having a massive, nearly total ban on new immigrants. The legal authority for both this immigration ban and for the work visa restriction I'm about to talk about next is 8 U.S.C. § 1182(f), which I mentioned earlier, which gives the president the authority to bar the entry of virtually -- of any alien that he determines is detrimental to enter the United States. The very broad interpretation of this, adopted by the Trump Administration, is that the president can essentially bar any aliens he wants based on the assertion of any interest he wants.


      That runs into a very serious non-delegation problem and that the Supreme Court has ruled there'd have to be at least some limit to the delegation of power by Congress to the president. And conservative justices like Justice Gorsuch have been among the most enthusiastic in arguing that this limit needs to be enforced. And a delegation, which essentially says the president can bar any alien he wants for as long as he wants for any reason he wants, that surely violates non-delegation, if anything does. And therefore, this restriction and the accompanying work visa restriction are unconstitutional. And indeed, that's exactly what a federal district court ruled in October of 2020 with regard to the work visa restrictions, and the litigation would have continued further but for the fact that President Biden rescinded these two policies soon after he came into office. So obviously, the case didn't continue to the appellate level.


      Much the same problems that arise with the permanent residency migration restriction also arise with the work visa restrictions. It had absolutely no beneficial effect on public health, and it almost certainly damaged the economy much more than it benefited it. In fact, this may have damaged it even more than the permanent residency restriction did because, of course, workers who come in on H-1B visas, and some of the other visas that were restricted here, they are particularly important to employers, including in the high tech industry and other industries that are crucial for economic growth and also for economic recovery.


      I would also add that with all these measures, actual public health experts and the CDC did not advocate them and, in general, opposed them when they were consulted about them. The impetus for all of this came from the White House. The last measure I'd like to talk about, the Title 42 expulsions, is the only one that is still enforced under the Biden Administration. Though in my view, at least Biden is making a very serious error by continuing this, and that is the policy under which nearly all asylum seekers at the border are, instead of being considered or given hearings for asylum, they are immediately deported by the ICE.


      This is not done under Section 1182(f) like the other policies we've been talking about. It's rather done under Title 42, which says that the director of the CDC has the authority to exclude aliens in order to "prohibit the introduction of a communicable disease into the United States," or where he believed there's a serious danger of such introduction. And right away, there's a fairly obvious legal problem here that by the time this measure was put in place, COVID was, in fact, already in the United States and growing at a rapid rate. It's very questionable that you can use a law that enables you to prevent the "introduction of a communicable disease" to forestall the entry of a disease that is already here. You can't introduce something that is already in the U.S. and is already spreading rapidly.


      In fact, this measure, like the other ones, did little if anything to prevent the spread of COVID as we can see from the fact -- that it did, in fact, get into the U.S. and did spread rapidly and tragically has killed over -- almost 600,000 people. This measure also -- although formally it was instituted by the CDC, actual CDC public experts were opposed to it, both under the Trump Administration and under the Biden Administration. The impetus for it came from the White House. And it is sadly under Biden, the White House which decided to continue to keep it going, at least so far.


      Now, you could say that introductions should be interpreted so broadly that it can be used any time the CDC director says there's any risk of spreading any communicable disease at all. But if you go that route, then you'll have the same non-delegation problem as before, given the fact that it's always possible to say that unless a particular person or group is barred, there's always some chance that they might have some communicable disease of some kind. These types of a statute doesn't even limit based on how severe the danger is, so you could say, well, if we don't keep out this person they might have the common cold or the flu and if they come in they might spread it.


      I would add the Biden Administration has made one change to this policy, and that is that they have excluded unaccompanied minors. This is why we've had an increase in unaccompanied minors recently in that if family groups are automatically expelled, but unaccompanied minors are allowed in, that gives families an incentive to allow children to come in as unaccompanied minors. The better way to go from both a humanitarian perspective and from the standpoint of legality and common sense is simply to allow families to come in as groups, apply for asylum as normal and the like, and where necessary, we can use much more limited and targeted measure to prevent disease spread. Though by now, any spread of COVID that is going to happen in the U.S. has already occurred, as we see from the 600,000 deaths. And by now, we also know that the real way to prevent the spread of COVID -- the only one that actually works for the significant decree is to vaccinate people.


      So I think Biden has been very wrong not to terminate this, and in some ways, I think he's even more wrong than Trump was because by now, any risk is greatly reduced by widespread vaccination. And also, we know more about how the disease works and how to control it, and therefore, we know how to deal with it through measures less draconian than simply expelling many thousands of people, many of them fleeing desperate conditions and who otherwise have the legal right to apply for asylum. And for the reasons mentioned earlier, I think this measure was illegal to begin with when Trump instituted it. And it is even more obviously illegal now when it is even more difficult to argue with a straight face that this is somehow preventing the introduction of a disease.


      You could argue that, well, if maybe it's a different disease, if it's a different variant of COVID, but at the moment, there's no evidence that any variants can come in through the southern border that aren't already in the United States. Every variant of concern that has been identified by the CDC and others, sadly it is already in the U.S., at least to some degree, and to the extent that its spread is being prevented right now is because the vaccines work really well. Ironically, vaccines, whose existence we owe to immigration. More can probably be said, and I look forward to Chris's remarks and to the discussion afterward. Thank you so much.


Christopher Hajec:  Thank you, Dr. Somin, for that interesting discussion. I confess that I lack your medical expertise, and I'm not going to really be speaking to the effects on COVID or anything else. And I also don't have a whole lot to say about the policy aspects of what you said. I know there's an entire school of globalist economics that makes various arguments about the effects of immigration and that President Trump was relying on something rather simpler called the law of supply and demand.


      But I want to talk about the law. Just to start off with your argument that the Title 42 expulsions were unlawful because COVID had already been introduced. I believe the statute says the executive may prohibit the introduction of aliens who carry a communicable disease. It doesn't say it can prohibit the introduction of the disease. And COVID was very prevalent in Mexico and in Canada, and even if it's already been introduced here, I don't think it's a senseless thing to prevent the further introduction of it, which could have made it much worse.


      But the main reason for it — and the only reason for the other exclusions under 1182(f) — was domestic -- was the domestic economy. We were actually involved in that case in California, where the judge ruled that these expulsions were unlawful. A group of plaintiffs led by the National Association of Manufacturers challenged the suspension of the H-1B program and other guest worker programs in that case.


      Some background here is in order. In 1952, when Congress passed the Immigration and Nationality Act, it included a provision authorizing the president to suspend the entry of all aliens, or any class of aliens, into the country if he found their entry detrimental to the national interests. When the bill was debated, its sponsor, Congressman Walter, explained that this sweeping power would be necessary in times of epidemic or high unemployment. Last year about this time, sighting high unemployment caused by a pandemic, President -- and it was caused by the pandemic because of all the lockdown. The lockdowns crashed the economy, and a lot of people were out of work. So President Trump suspended the entry of H-1B workers and other guest workers and also all green card applicants from abroad.


      Now, it's true that under the Constitution, Congress may not transfer power that's overly broad to the President. But the power of suspending entry, as the Supreme Court explained in the travel ban case, Trump v. Hawaii, when it upheld that travel ban -- that power is different because the Constitution itself gives the president broad power over foreign policy, including the power to suspend the entry of aliens. Case after case has said that. Thus, Congress did not delegate or transfer power to the president in the suspension of entry provision but merely implemented his preexisting power.


      Nevertheless, the California district court judge, who enjoined Trump's guest worker ban, found a way to rule that it violated the Constitution. He said that because Trump's ban had a domestic purpose protecting American jobs, and that was its purpose, it was not a foreign policy action but a domestic policy action. And thus, the suspension provision as applied to the ban was an overbroad delegation of domestic power. In our brief on appeal, we took issue with this purpose test for whether a power is used domestically or in foreign policy. Under that test, for example, a war America fought abroad to secure a natural resource purely for domestic consumption would be mislabeled a domestic action because of its domestic purpose. And also, economic stimulus measures enacted domestically meant to generate more funding for our armed forces would be mislabeled foreign policy actions.


      The Supreme Court has never used this paradoxical purpose test. Instead, when President Truman seized domestic steel production in the early 1950s for the purpose of protecting the national defense, the Court did not find that its use of power was in foreign policy because it had a foreign policy purpose, but looked to the subject matter of his order, steel mills in the United States, and found that he had exceeded his domestic authority. And again, suspending the entry of aliens abroad into the U.S., whatever its purpose, is always in the area of foreign policy. It always has a foreign policy subject matter.


      So the Supreme Court rejected the purpose test that was used by this California federal district court judge. It doesn't work. And we explain all of that on appeal, but now the case is moot. So the Ninth Circuit has not ruled on it. I don't think either the Title 42 expulsions are unlawful or the -- especially not the 1182(f) expulsions. The Supreme Court has explained, again and again -- most recently in the travel ban case -- this is -- 1182(f) is an implementation of a preexisting executive power, and it's not subject to the delegation doctrine. And the workaround that this judge found, the purpose test, doesn't work and has been rejected by the Supreme Court in a very famous case that I was just talking about.


      And we can debate the wisdom of these exclusions, but it seems only common sense that if Americans are out of work that they don't need more foreign competition for jobs, and that was the reason for the expulsions for the suspension of entry. And it was a reason that was specifically contemplated by Congress as a reason for granting this power -- a future period of high unemployment or an epidemic. Well, in this case, it was high unemployment caused by an epidemic. So that's what I would -- what I think the law is here. And as for Professor Somin's medical and public policy arguments, I don't really have a detailed response prepared because that's not what I do. I'm not a policy expert. I am a lawyer. So thank you.


Nicholas Marr:  Okay, thanks for your great responses. First, I'll give Professor Somin a chance to respond to the remarks we just heard and then Chris, if you want to re-respond. Then we'll open the floor. Any questions you want to ask each other, go for it.


Ilya Somin:  Thanks to Chris for his thoughtful comments. I just have a couple of brief points -- two legal points and then even more briefly, two, sort of, moral or policy points. On Trump v. Hawaii, which I was heavily involved in in various ways, the Court did not rule that the executive had the power to exclude aliens any time it wanted on its own. It specifically relied on Section 1182(f) as the authority for the travel ban, but significantly, it did not consider a non-delegation challenge to the scope of the administration's interpretation of Section 1182(f).


      So the issue of the applicability of non-delegation immigration policy is an issue the Supreme Court so far, at least, hasn't decided. However, the Court has said all the way back to the Chinese exclusion decision of 1889, which is the first decision where the Court said the federal government has a general power to exclude immigrants. The Supreme Court ruled then, and it said so again since then that this is ultimately a power of Congress. It's not simply something the executive can do on its own. It's true it does have foreign policy effect, but not everything that has foreign policy effect is within the inherent power of the president.


      So I agree to some extent with Chris that I'm not sure you can decide this based on the purpose of the exclusion, rather to my mind to the extent that the federal government has power over immigration at all, it is first and foremost a power that Congress has. And the president's power with rare exceptions such as in time of war, perhaps, is just whatever Congress delegates to him, and it is, therefore, subject to non-delegation doctrine constraints.


      On Title 42, the word introduction is actually used twice in the statute, which may lead to some confusion on Chris's part. It does say that it gives the CDC director the power to "prohibit the introduction of aliens into the U.S.," but then it says that power exists only in cases where "there is a serious danger of the introduction of disease." And obviously, a disease that is already here and already spreading rapidly is not one that can be introduced. It's already here. And as it turns out, this Title 42 restriction did nothing to prevent the rapid spread of COVID in the U.S. because, to repeat again, it was already here.


      I'm not, by the way, relying on any specialized medical knowledge of my own. I don't have any such knowledge. I don't claim to have it. I'm relying on the consensus view of public experts, including CDC experts, who have commented on this particular policy. I admit experts are not always right about such things. They could be wrong. But we laypeople, myself included, as a general rule when it comes to things like the science of disease, we do better to consult experts than to rely on my unaided knowledge or Chris's unaided knowledge or the unaided knowledge of others who don't have that particular kind of expertise.


      Finally, on the question of economic policies, it is actually -- there is a large literature on the impact of immigration on employment, including during periods of recession and depression, and it pretty consistently shows that while there is job competition in certain particular sectors, overall immigration massively benefits the domestic economy. That even includes research on immigration restrictions that occur during serious economic crises like the Great Depression, where that research suggests that those restrictions did little if anything to raise employment in the U.S. They may have helped raise employment in a few sectors, but the overall effect was detrimental.


      And that's particularly true if Chris is right that the unemployment was actually caused by the lockdowns. There's a debate among experts as to what extent of it was caused by lockdowns or to what extent by people's hesitancy to go to work or to patronize businesses. I suspect it was some of both. But to the extent that that was caused by the unemployment, it wouldn't be mitigated by keeping out immigrants because obviously, keeping them out would not end any lockdowns. And also, it would not make people more willing to patronize restaurants or whatnot. And I would also add, of course, that to the extent that this was the real motive, then there was no good reason to continue it once employment actually started to rise again as it did by the summer of last year. So I'm sure more could be said about both the legal and other issues here. I turn over the floor to Chris, and I look forward to the questions and further discussion. Thank you.


Christopher Hajec:  Okay, thanks. When it comes to foreign policy, the president has a lot of power, and he has to have a lot of power. It's inherent. It's in the Constitution. He's the Commander in Chief of the armed forces. Because in foreign policy, things happen quickly, somebody needs to decide things quickly. It's not something you want to put in Congress's hands, the day-to-day, or the administration of foreign policy. It's the president's realm. And immigration, especially the entry of aliens abroad into the United States, is part of foreign policy.


      So for that reason, as the Supreme Court has said again and again, when Congress enacted 1182(f), it wasn't delegating a power to the president. It was implementing a preexisting power that the president has. That is why there is no delegation problem here and no unlawfulness in his suspension proclamations. And you can quarrel about the economics of it, and a lot of these studies showing the great effects of immigration on the economy are funded by big business and -- who want cheaper workers. More workers means cheaper workers. That's true at any level. It's true of tech workers. It's true of blue-collar workers, farmworkers, right on down the line.


      And some of the worst effects of this -- of cheap labor policy driven by these -- justified by these economic studies, funded by big business, has been to progressively pulverize the working class of this country. And there are no targeted solutions to this. What they end up getting is public assistance. If you want higher wages, which began to happen for the first time since the '70s -- for the first time since the '70s, the lower income levels -- their wages began to rise under Trump. If you want higher wages like that, you need a tight labor market. And the only way to get that is by restricting immigration. You don't get that by widening it, even if -- which I don't grant -- that would increase the overall gross domestic product.


      And to a certain extent, adding people increases the gross national product, or the gross domestic product, because there's just more people and there's more economic activity. But you have to look at it per capita too. And just as a gut check on this, I mean, between 1924 and 1965, excluding the Great Depression — which no one argues was caused by immigration restrictions — we had very little immigration into the United States. The 1924 Act really cut it off. And in the 1970s, for example, we had the lowest rate of foreign-born residents in our history. And it's since gone up because they changed the law in 1965. That period, excluding the Great Depression, was a period of great economic growth, a higher economic growth than we've had typically since the 1980s.


      How is that possible without all the benefits of immigration? How could we have done that ourselves without constantly being replenished with immigrants? It's -- I don't think the economic arguments here are that clear, but I do think it's clear that if you want to help out and give a life of dignity and success to a large group of people in the United States whose wages have been stagnant since the '70s, except a little bit under Trump, you have to restrict immigration.


      And as far as COVID is concerned, the law says that you can prohibit the introduction of aliens to prevent the spread of communicable disease, and is just -- I don't think it's necessarily true that if COVID's already here, you can't make it worse. We don't know what would have happened if many, many aliens from Mexico were coming through Mexico from other parts of the world, which is a lot of it, with COVID coming in. If that would have made it worse -- I think it probably would have made it worse.


      And as for getting rid of Title 42 now, that would just make the current border situation even worse. They can't handle it here. They can't put people in quarantine and do all the things they're supposed to do under the law. They just let them go because there's so many. There's so many because the Biden Administration deliberately turned on the magnet again. Trump had turned that magnet off with COVID expulsions, his remain in Mexico policy, various other things that stopped them from trying to a large extent because they weren't getting in. They weren't getting in saying, oh, I am applying for asylum, and then they're let go pending their hearing date in a year, which mostly they never showed up for. And when they did show up, 70% of them did not get asylum.


      Instead, they had to wait in Mexico. Well, that wasn't what they had in mind. So Biden, by ending all these things, and ending most removals that are mandated by law, has turned that magnet on again. And the border is uncontrollable right now and would become even worse if we just lifted the Title 42 expulsions and just let everybody in. It would just become even more of a flood. So I appreciate very much Professor Somin's comments, and I think it's -- I think the law is quite clear here, and I think that the economics are not as all these studies and experts and so forth have been telling us. Thanks.


Nicholas Marr:  Thanks very much, both -- I'm going to open the floor for audience questions if there are any audience questions. The floor is wide open right now. Professor Somin, I'll pass it back to you -- or Chris. If any -- if you have specific questions for each other, it might be a good direction to move. If we've got an audience question that comes up, I will interject and let you know.


Christopher Hajec:  Well, I'd say, Professor Somin, how do you explain that the lowest level of wages have been stagnant in [inaudible 33:52] since the '70s, except for a period under Trump?


Ilya Somin:  I think the standard explanation for that offered by most economists is actually two-fold. One is that the claim of wage stagnation since the '70s is actually -- has flaws of its own in that it's based on flawed estimates of the price level and other technical points that we probably don't have time to get into.


      The second is that the last two or three years, the Trump Administration — before COVID, at any rate — lured the last period of a very long economic recovery. And you've often seen wage increases during the height of an economic recovery. We saw it in the late 1990s, by the way, during that long economic recovery. We saw it in the late 1980s as well. I would argue that if you want to talk about increases in the standard of living of the working classes, the biggest ones in all world history were actually — and it's certainly in all American history — were in the late 19th Century and the early 20th Century during the late stage of the Industrial Revolution. And that was a period where we had virtually open borders -- immigration for the entire world, except to some extent for China and Japan.


      So there's virtually no serious economists who believe that the reason why there was some wage growth in the last two or three years of Trump was because of his immigration restrictions. And I would add the claim with all [inaudible 35:19] funding by big business that's just false. It's the kind of thing that actually the left throws at economic studies that they don't like. This is the broad consensus view of economists across the political spectrum, both right of center and left of center, most of them employed by universities rather than by businesses. I don't know if we have audience questions --


Christopher Hajec:  Do you have any questions for me?


Ilya Somin:  -- or if you want -- yeah. So I guess my question for you is that are you of the view that these -- clearly you favor the restriction that Trump instituted as emergency measures. Do you, like Stephen Miller, believe that they should be continued more or less indefinitely? What you said about Title 42 near the end of your presentation suggested that may be your view, but perhaps I'm misunderstanding.


      And if the idea that they should be continued indefinitely, then aren't you also then saying that the president has broad authority to exclude any migrants he wants for as long as he wants for any reason he wants even after an emergency is over? Sorry, that may be two questions rather than one. If you only want to answer one, that's certainly your prerogative.


Christopher Hajec:  That's okay. I don't have a -- my view is that they're lawful, these proclamations. We don't really have at early -- a view of whether they're right or not.


Ilya Somin:  Okay.


Christopher Hajec:  FAIR has a view like that. FAIR thinks and has long argued that we should have an immigration moratorium, I believe, a virtual moratorium -- not complete -- for a while. But I don't really want to speak for FAIR here. My job is to be a lawyer, to bring lawsuits --


Ilya Somin:  Okay.


Christopher Hajec:  -- to file amicus briefs. These proclamations were lawful --


Ilya Somin:  Can I ask --


Christopher Hajec:  -- in my view. And that's what I was speaking to. Now, how broad does it get? I think it does get very broad. It is an extremely broad power that Congress gave -- a foreign policy power that Congress gave the president here. And as I've explained, I do not see a delegation problem. If the president does these things and the people don't like it, that'll be a political problem for him. But I don't see any legal problem.


Ilya Somin:  And in your view, there would be no legal problem no matter how long it continued, and it would still be legal even after the COVID crisis is largely over. Is that right?


Christopher Hajec:  These -- there would have to -- he would have find -- he would have to reach a finding. It is required that he find that it's detrimental to the national interests. He would have to reach a finding that it's detrimental to the national interests in order to continue them.


Ilya Somin:  Okay.


Christopher Hajec:  But then I don't know what that finding would be.




Ilya Somin:  So long as he has a finding of some sort, then it would be okay with you -- or not that it would be okay with you, but you would say that it's legal?


Christopher Hajec:  I would say that -- yes, that's what the law says.


Ilya Somin:  Okay. So I guess I would only say that if that isn't the non-delegation problem, it's very hard to say what is, and I talked earlier about why.


Christopher Hajec:  Non-delegation doesn't apply in foreign policy. This power is a congressional implementation of an inherent executive power -- constitutional power, not a delegation. The Supreme Court has held so.


Ilya Somin:  Okay. Thanks for your answer.


Nicholas Marr:  Just a quick call. We don't have any right now. Otherwise, we might end a little bit early here unless anyone wants to ask any other questions, or you can just go into closing remarks if you'd like. I'll leave it up to our speakers. Thanks very much for your great discussion so far.


Christopher Hajec:  Okay. Well, I would just say that, to reiterate, if you're interested about -- in the law here, it is an interesting area. I believe the Supreme Court has made it clear that the president does have this power, and it's quite broad. The outcome of the travel cases was consistent with prior precedent and guided by prior precedent. I might add about the travel ban itself, that's a very good illustration of -- well, that would be going too far field.


      So I think this power exists. Trump used it lawfully. I think that district court judge would have been reversed in the Ninth Circuit and certainly at the Supreme Court. And the Title 42 expulsions are also consistent with the statute enabling them because -- there was a case in the D.C. Circuit where the judge ruled that you can only prohibit the introduction of aliens. You can't turn them back over the border once they're introduced because they're already introduced. Well, that would make the power completely empty.


      If you have the power to prohibit the introduction of aliens, you have the power to send them back immediately after they come over the border. You don't have to erect an impenetrable physical barrier or shoot them or something while they're still on the -- on foreign soil. You can send them back. And I think that's what the D.C. Circuit will hold in that case, which the Biden Administration is busy settling because they've already exempted the minors that were the people suing in that case. So thank you very much for this opportunity to talk about this issue. And over to you, Ilya.


Ilya Somin:  Thanks to The Federalist Society for organizing this event, and to those who listen, I apologize for any technical difficulties there might have been with the questions. Just a couple of quick points to sum up.


      First, on the travel case, the Supreme Court never in that case, or in previous cases, said that the executive had power all on his own to ban any aliens or immigrants that he wants. If that was their view, they wouldn't have needed to do all the analysis that they did of Section 1182(f). And if that was the position taken by the majority, Clarence Thomas would not have needed to write his concurring opinion where he said that he did think that there was an inherent executive power there. Thomas has an extraordinarily broad view of executive power in this area, and if the majority had endorsed that view, he wouldn't have needed to write his separate concurring opinion.


      I would also add that while the travel ban case considered other kinds of challenges to the legality of the travel ban, they did not consider non-delegation, so if the case about the work visa exclusions had proceeded and had gotten to the Supreme Court, that would have given the Supreme Court a chance to consider that. But the Supreme Court has never held either that the executive has a general power to exclude any immigrants that he wants or that the non-delegation doctrine does not apply to this area. That just simply isn't the case.


      Similarly, on Title 42, as I had mentioned earlier, the word introduction is used in two places. It is true that it says that it's a power to prohibit the introduction of aliens, but then the word introduction is again used where it says that the situation where this power to prohibit the introduction of aliens exists is a case where the Director of the CDC believes that there is "serious danger of the introduction of a disease into the United States." So you cannot introduce a disease that is already there. If you could, then essentially this too would be the power to exclude any aliens at any time and would run into non-delegation problems because he could say any alien who might potentially have a communicable disease, whether that disease in the U.S. or not, if that's a power to exclude people, then it would again be the power to exclude any aliens at any time and would be a very serious non-delegation problem.


      So this sort of massive executive power grab is very problematic to anyone who believes in non-delegation and the separation of powers. And in this case, and a number of other ones, it also has caused vastly more harm than good. I wouldn't trust Donald Trump with that power. I wouldn't trust Joe Biden with that power, either. To the contrary, it's much better if we have a rule of law in this area as opposed to virtually unbridled executive power. And it's much better if that power is wielded with a view to understanding the enormous benefits of immigration and with a presumption against excluding people seeking freedom and opportunity except perhaps in extreme cases where there are really some genuine justification for the expulsion or exclusion as opposed to what is, in this case, an almost entirely bogus and made up one. So I think Federalist Society once again for organizing this and Chris for his remarks. And I very much appreciate the opportunity to speak. Thank you.


Christopher Hajec:  If I could just add something. A quote from United States ex rel. Knauff v. Shaughnessy, a 1952 Supreme Court case where the Court explained that the Congress generally determines the rules of alien admission, "The power of exclusion of aliens is also inherent in the executive department of the sovereign, and 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." So that just explained that that, among other things, was what I was referring to when I said the Supreme Court has held this as an inherent executive power. Thank you very much, Ilya. It was a stimulating conversation. And I'm sorry that -- if there was any kind of problem with the question, any technical problem. I would have enjoyed hearing them.


Ilya Somin:  Yeah. I would conclude that that quote still doesn't say that the president has a general power to exclude any aliens at any time he wants.


Christopher Hajec:  No, it doesn't say that exactly.


Nicholas Marr:  Well, this is Nick from The Federalist Society. First, we do apologize for any technical issues. We're transitioning all of our programming soon over to a different platform, so stay tuned for that. But in the meantime, thank you very much -- both for joining us today for this great discussion that you've had. It seems like we could continue on, but we'll close it out a little bit early. But thanks for your time and the benefit of your expertise. Also, to our audience for calling in, for listening, and for engaging in this conversation. As always, be keeping an eye on your email, on our website, for announcements about upcoming events and registration information, and more. So until our next event, everyone stay well. Thank you for joining us. We are adjourned.




Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at