Kennedy, Korematsu, and the Travel Ban
President Trump’s recent travel ban sparked an interesting constitutional discussion regarding the limits of executive authority. Assuming Judge Robart’s ruling, blocking President Trump’s executive order, does make its way to the Supreme Court, the potential Supreme Court ruling would have broad implications beyond President Trump’s executive order regarding a travel ban. The reverberations of such a ruling will likely effect presidential powers for years to come. For the liberal bloc of the Court to have any hopes of overturning the largest portions of President Trump’s order and create new precedent they need the vote of Justice Kennedy, the so-called “swing vote” on the Supreme Court. In order to draw Justice Kennedy to their side they could offer one incredibly enticing opportunity: the chance to overturn the universally reviled Korematsu v. United States.
The issue of President Trump’s executive travel ban is not as simple as it is made out to be in the media. There are two distinct groups of people affected by the ban and very different legal results may be reached for each. The first group is legal residents of the United States who hold “green cards” and hail from one of the countries on President Trump’s list. For the most part, these were the individuals seen on the evening news trapped in airports as they were unexpectedly not permitted to return to their homes in the United States. The second group is potential future immigrants who would like to immigrate to the United States but have not yet been allowed that opportunity.
For the first group, legal residents, the issue becomes one of the Due Process Clause under the Fifth Amendment which forbids arbitrary takings of life, liberty or property by the government. For the second group affected by the travel ban, potential future immigrants, it becomes cloudy what legal precedent exists to claim that President Trump’s order is unconstitutional. First of all, it is hard to envision a plaintiff with standing to bring a challenge when the harm is simply hypothetical. “I would have immigrated to the United States in the future if not for this ban” simply will not suffice. Secondly, even assuming an individual with standing can be found, the legal precedent simply does not exist to find the portion of the travel ban affecting future immigrants unconstitutional. Colloquially termed a “Muslim ban,” in fact President Trump’s ban is tailored to specific countries with allegedly poor vetting for potential immigrants. Indeed, the largest Muslim countries in the world, Indonesia, Pakistan, and India, are absent from the list. Of course, the case has been made that President Trump’s ban is not a travel ban but a Muslim ban in disguise. After all, on the campaign trail he did propose a Muslim ban. It could be argued that the travel ban is a de facto Muslim ban. However, even assuming that to be the case, the ban would still likely be found constitutional. After all, Korematsu v. United States is still technically good law.
However, the fact that Korematsu is still technically good law could be used in this case to the advantage of the liberal wing of the Court. For the liberal wing of the Supreme Court to entice Justice Kennedy to their side they could offer him a Holy Grail of constitutional law: the opportunity to write the opinion that strikes down Korematsu. Korematsu was the case in which the Supreme Court held Japanese-Americans could lawfully be interred during World War II because the danger of espionage met the compelling interest required by the government to take such an action. Of course, today the ruling is universally reviled. Both sides of the Court’s liberal and conservative wing have denounced Korematsu. However, Justice Kennedy has been carving out a legacy for himself of late. Offering him the opportunity to be the judge whose opinion brought down (officially) Korematsu might be too much for him to resist. The ruling would likely have to be broad and somewhat vague… something to the effect of, even for the purpose of national security, the government cannot take action against suspect classes simply because they are members of that class, whether it is based on religion or ethnicity. For many jurists, such a broad ruling may be unacceptable. However, in the past, Justice Kennedy has shown a willingness to author broad opinions which contain big ideas but can be criticized as lacking judicial guide-posts. For instance, in his recent Obergefell opinion, Justice Kennedy authored an opinion holding Due Process granted the right for gays and lesbians to marry, however failed to state if gays and lesbians make up a suspect class.
Perhaps such a result would ultimately aid the conservative wing of the court. It may be appealing for Justice Kennedy to retire following such a momentous ruling striking down a universally loathed case. There can be no doubt he would leave the court with a legacy.
It is important to keep in mind that what is at stake is far greater than President Trump’s executive order. What a Democrat or Republican calls an executive order is later criticized by the same individual as rule by fiat when a President of the opposing party is in power. Just recently, to the cheers of conservatives, Texas emerged victorious against President Obama’s executive order protecting illegal immigrants. Today the shoe is on the other foot. What is important is a workable and lawful standard for executive orders, not a short-term political victory for either side.
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John Reid is Assistant Professor of Law at the United States Air Force Academy. The views expressed in this article are those of the author and do not necessarily reflect the official policy or position of the United States Air Force Academy, the Air Force, the Department of Defense, or the U.S. Government.
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