Travel Ban

Free Thoughts on Trump v. Hawaii

and the repudiation of Korematsu

|

1. I was wrong. I predicted at a conference last month that the Court would uphold the proclamation either 7-2 or 6-3, but it was 5-4. Everybody else on the panel was wise enough not to make such a concrete prediction. And though the Court never says so, I'm still not so sure that the Court would have upheld the first version of the travel ban.

2. Donald Trump is mentioned by name only twice in the 39-page majority opinion, once as "President Trump" in the very first sentence of Part I.A, and once as "then-candidate Trump." Every other reference is to "the President." By contrast, Justice Sotomayor's dissent contains repeated references to "President Trump," mentions the "Trump administration," etc. I doubt that either is an accident.

3. The majority's declaration that Korematsu is overruled is an important statement. I confess I had not predicted that the Court might repudiate Korematsu and uphold the proclamation at the same time, but it is a clever move. Few people are going to want to complain that the Court went out of its way to repudiate a case that we all agree deserves repudiation.

Some scholars had suggested that Justice Thomas's prior opinions might provide some support for Korematsu, but Justice Thomas fully joins the majority opinion, including the repudiation.

Technically, the Court does not overrule Korematsu, but says that it has already "been overruled in the court of history," and was "gravely wrong the day it was decided." (Those are two different things -- on the Court's view Korematsu was wrong but precedential on December 18, 1944, and on some other day before today, but we are not told when, Korematsu ceased to be precedential.)

4. As Eugene notes, Justice Thomas's critique of the issuance of national/universal injunctions makes extensive reference to Sam Bray's excellent article on the subject. And as Steve Sachs notes, there is a pending stay application in City of Chicago v. Sessions that looks like a good vehicle for the rest of the Court to decide what it thinks about the practice. (Two of the dissenters argue that a nationwide injunction was appropriate here, but on reasoning that might not extend to the sanctuary cities litigation.)

5. After this opinion, suppose President Trump used his Section 1182 authority to impose a unilateral ban on the entry of all aliens of any kind, perhaps with a stringent waiver process, and called the policy "I'm sorry you can't come in." Would that be legal? I very much hope not, but I am not sure.