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.
Harlan G. Cohen,
The National Security Delegation Conundrum
Available at: https://digitalcommons.law.uga.edu/fac_artchop/1324