Huq: The Future Of Constitutional Discrimination Law After Hawai’i v. Trump

The Future Of Constitutional Discrimination Law After Hawai’i v. Trump

The crux of the Supreme Court’s travel ban decision is the technical question of what standard of review applies to claims of religious and racial discrimination. Its holding was that a challenged policy will survive if it is “plausibly related to the Government’s stated objective to protect the country and improve vetting processes.” In a footnote, the Court seemed to cabin this ruling to “to any constitutional claim concerning the entry of foreign nationals.” Moreover, the majority opinion goes out of its way to distinguish the case from the Korematsu judgment, which it purports to repudiate as “gravely wrong the day it was decided.” 

Based upon a forthcoming analysis of the Court’s work on discriminatory intent, I do not think that the Court’s repudiation of Korematsu is credible. Instead, it is hard to see how the core deference principle at work in today’s decision can be limited to foreign nationals’ entry claims. Rather, in light of other decisions challenging enforcement actions across the immigration and criminal justice fields, today’s opinion is better read as the affirmation of a simple rule: So long as the government asserts some kind of public security justification when it wishes to coerce or confine, a litigant alleging bias must lose. What is new after Trump (and Trump) is simply that such discrimination can be overt and overtly ugly.

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