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

Abstract

The Supreme Court’s deferential decision upholding President Trump’s travel ban muted longtime values of judicial craft. Consider the interaction of constitutional and statutory interpretation. In her dissent, Justice Sotomayor likened the Court’s decision in Trump v. Hawaii to Korematsu v. United States, in which the Court rejected an equal protection challenge to 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. An approach more attuned to judicial craft would have recognized this problem and pivoted toward a statutory holding against the travel ban. Practicing foreign affairs deference, 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, which tempered Executive overreach during the Cold War, and more recent administrative law decisions such as King v. Burwell, which examined the overall scheme of the Affordable Care Act to interpret a provision governing health care exchanges. 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.