Immigration Article of the Day: The Travel Ban Decision and the Twilight of Judicial Craft: Taking Statutory Context Seriously by Peter Margulies

The Travel Ban Decision and the Twilight of Judicial Craft: Taking Statutory Context Seriously by Peter Margulies

Abstract

The Supreme Court’s deferential decision upholding President Trump’s travel ban abandoned longtime values of judicial craft. In her dissent, Justice Sotomayor linked the Court’s decision in Trump v. Hawaii to Korematsu v. United States, in which the Court upheld a conviction arising from the Japanese-American internment. Writing for the Hawaii majority, Chief Justice Roberts rejected the comparison. Lost in the clamorous debate about Korematsu’s substantive relevance was an important methodological point: The Hawaii Court could have taken a page from another decision on the internment, Ex Parte Endo, which held that a key component of the internment exceeded the scope of Congress’s delegation to the Executive. Instead, the Hawaii Court coupled a mechanical defense of the travel ban on statutory grounds with an unconvincing analysis of the plaintiffs’ Establishment Clause claim.

The prime flaw in the Court’s Establishment Clause analysis was its puzzling reliance on rational basis review decisions, such as City of Cleburne v. Cleburne Independent Living Center, that subjected government action to far more searching means-ends scrutiny than the Hawaii majority was willing to employ. The robust inquiry in those cases contrasted with the Hawaii majority’s blinkered deference. Justices more attuned to judicial craft would have recognized this problem and pivoted toward a statutory holding against the travel ban. Inside its deferential bubble, the Hawaii majority instead read an immigration law provision in isolation from its statutory context. That move failed to acknowledge earlier cases such as Kent v. Dulles that tempered Executive overreach during the Cold War and more recent administrative law decisions such as King v. Burwell, which construed in statutory context a provision of the Affordable Care Act.

This Article critiques Hawaii’s flawed Establishment Clause and statutory analyses, applying the wisdom of Ex Parte Endo, the Cold War cases, and the recent administrative law decisions. That approach also highlights the risks of the Hawaii Court’s undue deference. In method, Hawaii’s deference resembles the Korematsu holding that Justice Robert Jackson’s dissent warned was a “loaded weapon” aiding further executive branch abuses. This Article offers a toolkit for defusing that dangerous weapon and making sense of legislative delegation on immigration issues.

KJ