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Peter Scuck: "By failing to define crucial terms, legal standards and accountability rules, Congress has handed presidents an all-too-handy tool of tyranny commonly used by autocrats."
nytimes.com/2019/02/14/opi…
nytimes.com/2019/02/14/opi…
During travel ban litigation, I wrote that non-delegation doctrine was poor fit to challenge of 1182f because of POTUS independent authority over exclusion. lawfareblog.com/travel-ban-art…
Similar limitations are harder to identify for building wall. Though one possible statute is based on Sec of State's judgment concerning influx of drugs from abroad. law.cornell.edu/uscode/text/10…
In any event, I would be all too happy if SCOTUS uses the wall case to highlight the problems with our current non-delegation doctrine. Congress should recover its legislative powers.
I also hope the administration releases an opinion from OLC explaining its justification for the new policy. This document will allow everyone to carefully scrutinize the reading before a brief is filed. I made a similar plea in 2014 on the eve of DAPA. joshblackman.com/blog/2014/11/2…
Fun fact: in Dec. 2016, Congress approved the statute that approved of "construction of roads and fences ... across international boundaries of the United States." After President Trump was elected. And Pres. Obama signed it into law. govinfo.gov/content/pkg/PL… 
The law was approved 375-34 in the House: senate.gov/legislative/LI…
and 92-7 in the Senate.
Congress authorized this broad delegation of power to the President after Trump was elected. clerk.house.gov/evs/2016/roll6…
and 92-7 in the Senate.
Congress authorized this broad delegation of power to the President after Trump was elected. clerk.house.gov/evs/2016/roll6…
