Article II and Antidiscrimination Norms

By Huq, Aziz Z. | Michigan Law Review, October 2019 | Go to article overview

Article II and Antidiscrimination Norms


Huq, Aziz Z., Michigan Law Review


Introduction

When can the federal government disadvantage a suspect class because of an animus against it? When the Supreme Court in its June 2018 Trump v. Hawaii decision validated the so-called travel ban-prohibiting entry by nationals largely from Muslim-majority countries1-it also repudiated a longstanding precedent related to the Japanese American internment of World War II, Korematsu v. United States.2 Although this repudiation was formally unnecessary to the case's resolution, it is difficult to gloss as anything other than an effort to amend the law-and as such an intentional and legally efficacious piece of text. Yet the brevity of the Court's presentation seeds a puzzle: Why did the Court's five-justice majority conclude that these twin holdings were compatible? How, as a constitutional matter, can exclusion circa 2017 be embraced (however gingerly) while internment circa 1942-1945 is kept at bay?

The terms of this reconciliation, such as it is, will likely be consequential both in practical terms and as a matter of constitutional theory. An integration of the Travel Ban Case's two holdings matters practically since it will shape whether, or under what circumstances, the federal executive has power to act adversely by relying on negative stereotypes or facial classifications concerning a suspect class. This follows without regard to whether one believes animus in fact tainted the travel ban's gestation. The reconciliation of the Travel Ban Case's two holdings is also theoretically salient because of the light it casts on the historical and structural assumptions of Article II jurisprudence. Contrasting these holdings with the basic terms of structural constitutionalism illuminates Article II's potential as an engine of, rather than a means of abating, invidious social stratification.

In this Article, I examine the disjunctive twin holdings of the Travel Ban Case as a step toward identifying and anatomizing an "open-textured," and hence open-ended, Article II discretion to discriminate.3 My first task is a close doctrinal dissection of the potential ways to synthesize the case's two holdings into a coherent whole. There are, to be sure, differences between the scope, objects, and effects of the Japanese American internment and the 2017 travel ban. These might seem to allow some constitutional partitioning. But I argue that none of the potential doctrinal distinctions yields a tenable demarcation between the prohibited and the permitted. Even the most robust-the citizenship line-proves far more permeable in practice to discriminatory coercion than it seems at first blush. Rather than peeling exclusion and internment apart, close analysis of these two holdings in a wider doctrinal setting reveals a plethora of parallelisms but a poverty of plausible separations. If the Travel Ban Case's two holdings are to be held in view simultaneously, it will require what F. Scott Fitzgerald once called "a first-rate intelligence."4

My second, more substantial and ambitious, aim is to explore the historical and analytic foundations of the ensuing open-textured Article II discretion-to-discriminate authority. A reconstruction of its doctrinal rationales reveals both formalist and functionalist justifications but no straightforward warrant based on either text or structure. At the same time, the historical record is replete with instances of discriminatory executive action, and does not support the proposition that coercive executive power will generate more public goods than harms when used without checks on discriminatory action. As a result, comparative institutional competence fails as a justification for judicial deference. This is especially so since courts typically operate as back-end insurance, and never as front-line decisionmakers formulating official policy in the first instance. Compounding this problem is the familiar fact that an embrace of judicial deference to executive discretion is achieved at the cost of asymmetrical blindness to the harm inflicted on suspect minorities. …

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