Volume 33
Issue 2
Winter '19

The Travel Ban Decision, Administrative Law, and Judicial Method: Taking Statutory Context Seriously

Written By: Peter Margulies

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 plain-tiffs’ Establishment Clause claim.

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