Originally posted at Just Security on July 17, 2019.

Abstract

In the past two years alone, Trump has claimed national security authority to unilaterally issue steel and aluminum tariffs under Section 232 and threaten the same on auto parts; to implement a travel ban targeting majority-Muslim countries under the Immigration and Naturalization Act (INA); to threaten Mexico with tariffs under the International Emergency Economic Powers Act (IEEPA) if it didn’t do more to stop migration to the U.S.; to find funds for a border wall that Congress specifically chose not to support; to continue attacks under the 2001 Authorization of Use of Military Force (AUMF), originally passed to go after the perpetrators of 9/11, on militant groups in Syria and elsewhere; and to float the possibility under the same AUMF of war with Iran (an interpretation the State Department seems to have thankfully mostly dropped) .

For many watching these developments, these congressional delegations, justified on national security grounds, seemed like a blank check. To address these concerns, this group would love to see national security delegations rolled-back or disciplined, and a revitalized non-delegation doctrine, which would limit the discretion Congress could delegate, would certainly help. Gundy, thus, set those favoring a regulatory state and those worried about a national security one on a collision course. A win for environmental regulation would be a loss for constraining emergency powers and vice versa.

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