Select Page

More Ideas that Can Help Repair and Extend the Rule of Law

Rule of Law 2

Like co-blogger Jonathan Adler, I was greatly impressed by Paul Rosenzweig and Vishnu Kannan’s recent article on “Repairing the Rule of Law: A Post-Trump Agenda.”I agree with nearly all of their proposals, with the possible exception of DC statehood. On the latter, I don’t have strong views either way, though I agree with Jonathan’s comment that it doesn’t really qualify as a rule of law issue. Jonathan is also right to emphasize that these reforms (and those Jonathan himself adds to the list) are worth pursuing regardless of who wins the November election. Most of them address issues that are not unique to Trump, even if his tenure in office has highlighted their importance.

I would add two other items to those proposed by Rosenzweig, Kannan, and Adler. Both are also issues that predate Trump and are likely to outlast him, even though his abuses of power have highlighted their importance:

  1. Eliminate virtually limitless delegations of power to the executive over trade and immigration—and possibly other areas.

As currently interpreted by the Supreme Court, the law gives the president the authority to impose almost any immigration or trade restrictions he wishes, for virtually any reason. That is both bad policy and deeply inimical to the rule of law. I discussed these issues in  greater detail with respect to immigration here, here, and here, and trade here.

Most recently, a similar problem has emerged from the Trump administration’s claim that the Center for Disease Control has virtually limitless authority to enact any regulation that might in some way reduce the spread of contagious disease (which effectively means the power to suppress or restrict almost any activity of any kind).

As discussed in various pieces linked above, this can be accomplished by stronger judicial enforcement of the nondelegation doctrine. But it can also be achieved by Congress passing laws paring back or eliminating the relevant statutes. I suspect we will ultimately need some combination of both. If claims of limitless

2. Subject immigration restrictions to the same constitutional constraints as those that apply to other federal laws.

As described in greater detail in my October 2019 Atlantic article on this subject, current Supreme Court precedent largely exempts immigration restrictions from most of the constitutional constraints that apply to virtually all exercises of federal power. This enables the President and Congress to engage in otherwise unconstitutional discrimination on the basis of religion, ethnicity, and political speech, and to exempt immigration detention and deportation from due process constraints that regulate other serious deprivations of liberty. The effect of this double standard is both a menace to the rule of law that lacks any basis in the text or original meaning of the Constitution, and a whole host of injustices (including many that impact US citizens as well as potential immigrants).

Eliminating this double standard, would not result in the end of all immigration restrictions. Far from it, in fact. But it would eliminate the use of unconstitutional discrimination, and subject enforcement measures to the same types of due process constraints that we take for granted in other areas of law.

As with nondelegation, the elimination of constitutional double standards on immigration law can be accomplished by some combination of court decisions reversing or limiting the relevant precedents, and congressional action. The No Ban Act proposed by congressional Democrats would be a great start on the latter front. It would impose important new constraints on both discrimination and delegation in the immigration context.

Much more can be said both on these two topics and on the more general issue of strengthening the rule of law. I am grateful to Paul Rosenzweig, Vishnu Kannan, and Jonathan Adler for jump-starting this much-needed discussion, which I hope will continue over the next few months and beyond.

This post has been republished with permission from a publicly-available RSS feed found on Reason. The views expressed by the original author(s) do not necessarily reflect the opinions or views of The Libertarian Hub, its owners or administrators. Any images included in the original article belong to and are the sole responsibility of the original author/website. The Libertarian Hub makes no claims of ownership of any imported photos/images and shall not be held liable for any unintended copyright infringement. Submit a DCMA takedown request.

-> Click Here to Read the Original Article <-

About The Author

Ilya Somin

Founded in 1968, Reason is the magazine of free minds and free markets. We produce hard-hitting independent journalism on civil liberties, politics, technology, culture, policy, and commerce. Reason exists outside of the left/right echo chamber. Our goal is to deliver fresh, unbiased information and insights to our readers, viewers, and listeners every day. Visit

Leave a reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.


Bringing together a variety of news and information from some of today’s most important libertarian thought leaders. All feeds are checked and refreshed every hour and pages auto-refresh every 15 minutes. External images are deleted after 30 days.

Time since last refresh: 0 second

Publish Your Own Article

Follow The Libertarian Hub

Please consider donating using any of the cryptocurrencies below or use the Brave browser to tip using Basic Attention Tokens (BAT). Your anonymous contributions help keep this website running for everyone to enjoy!


Take Control of Your Domain Names
The Ultimate Managed Hosting Platform

Weekly Newsletter

Newsletter Signup

Subscribe to our newsletter to receive a weekly email report of the top five most popular articles on the Libertarian Hub!

Weekly Newsletter SignupTop 5 Stories of the Week

Subscribe to our newsletter to receive a weekly email report of the top five most popular articles on the Libertarian Hub!