Article II and Antidiscrimination Norms

Aziz Z. Huq*

The Supreme Court’s opinion in Trump v. Hawaii validated a prohibition on entry to the United States from several Muslim-majority countries and at the same time repudiated a longstanding precedent associated with the Japanese American internment of World War II. This Article closely analyzes the relationship of these twin rulings. It uses their dichotomous valences as a lens on the legal scope for discriminatory action by the federal executive. Parsing the various ways in which the internment of the 1940s and the 2017 exclusion order can be reconciled, the Article identifies a tension between the Court’s two holdings in Trump v. Hawaii. Contrary to the Court’s apparent assumption, the internment cannot easily be rejected if the 2017 travel ban is embraced. There is no analytically defensible and practicably tractable boundary between the two. Recognizing this disjunction and explaining why the Court’s effort to separate past from present practice cannot prevail, I argue, reveals what might be called an “Article II discretion to discriminate.” By identifying and mapping this form of executive discretion, the Article offers a critique of the Court’s recent construction of executive power in light of historical precedent and consequentialist justifications. It further illuminates downstream distributive and regulatory consequences of executive power in the context of ongoing judicial constriction of Article II discretion over regulatory choices.

*Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law School. Thanks to Faith Laken for research assistance, and to Amna Akbar, Brandon Garrett, Gillian Metzger, Shirin Sinnar, Jed Shugerman, and participants at the 2019 National Conference of Constitutional Law Scholars for helpful comments. Abigail DeHart, Gillian McGann, Sarah McDonald, and other editors at the Michigan Law Review did excellent work improving this piece, and I am very grateful. This work was supported in part by the Frank J. Cicero Fund. All mistakes are my own.

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