Skip to main content area Skip to main content area Skip to institutional navigation Skip to search Skip to section navigation
Feedback

Penn Law faculty react to SCOTUS ruling on travel ban

June 27, 2018

With a 5-4 opinion written by Chief Justice John Roberts, the Supreme Court upholds President Donald Trump’s travel ban. Penn Law’s faculty provide analysis on the court’s decision that Trump’s travel restriction fell “squarely” within the president’s authority.

 

Howard Chang, Earle Hepburn Professor of Law

“The U.S. Supreme Court’s ruling in Trump v. Hawaii is a disappointment but not a surprise to observers familiar with the Court’s precedents in immigration law. Those infamous precedents repeatedly invoked the ‘plenary power’ doctrine, under which the courts defer to decisions by the political branches of the federal government, to uphold discriminatory policies in the field of immigration that courts would strike down in contexts outside of immigration law. The Court’s conservative majority applied this traditional deference to President Trump’s travel ban, accepting the ‘facially legitimate’ rationale proffered by the executive branch based on national security.

The Court’s ruling is a disappointment insofar as the majority did not take the unusual opportunity presented by this case to impose appropriate limits on the deference extended under the plenary power doctrine. This travel ban is no ordinary policy, and Trump is no ordinary president. This policy and this president illustrate the dangers posed by the deference prescribed by the plenary power doctrine.  Invoking this doctrine, the Court majority turned a blind eye to the ample evidence generated by Trump, both as a candidate and as a president, that the ‘facially legitimate’ rationale was not ‘bona fide.’ The majority put on blinders and ignored the extraordinary evidence of bad faith and animus that has been obvious to any reasonable observer of the development of this travel ban. By refusing to apply the scrutiny that the Court usually applies in Establishment Clause cases, the Court has failed in its constitutional duty to protect Muslims from discrimination based on religion. This abdication by the Court grants a dangerous license to a president who has demonstrated an alarming interest in basing his immigration policies on animus toward ethnic minorities, testing the outer limits of his executive powers, and undermining the constraints imposed on him by the rule of law.” 

 

Fernando Chang-Muy, Thomas O’Boyle Lecturer in Law

“The decision upholds the authority of a President. This is good for future Presidents who may want to issue an Executive order that is fair and just.

 However, just like this Supreme Court stated that the old Supreme Court decision upholding the detention of Americans of Japanese descent was wrong, maybe a future Supreme Court will hold that THIS decision, as Justice Sotomayor said, ‘blindly accepts the Government’s misguided invitation to sanction a discriminatory policy.’”

 

Kermit Roosevelt, Professor of Law

“It’s ironic that the Court disavowed Korematsu in a decision that shares many of the same vices. For a long time before this explicit rejection, Korematsu had been, as the Court put it, ‘overruled in the court of history.’ I doubt this decision will fare much better.”

 

 

Sarah Paoletti, Practice Professor of Law

“The Court, in accepting the Trump Administration’s assertions that its Proclamation banning all persons from select Muslim majority countries (and a select category of individuals from Venezuela) is grounded in national security interests, has again granted full deference to the President’s discretion in restricting immigration. Taking at face value the President’s assertion that the Proclamation was issued in the name of national security, the Court sets aside the trove of evidence demonstrating hostility to the Muslim communities directly impacted by the ban, and the failure of the purported waiver process to allow those who clearly pose no threat to enter the United States, as highlighted in the dissenting opinions. It also ignores how the Ban has served as a rallying cry for terrorists across the country seeking to portray America as a dangerous enemy. The Court’s decision feels particularly cruel and myopic at a time when several of the countries at issue are experiencing extreme and protracted humanitarian crises, in an environment where hatred seems to breed more hatred. And, when this Administration is locking up thousands of families seeking to assert their right to seek asylum, and the President has threatened their rights to due process and judicial review, it is all the more incumbent for the judiciary to assert its role as an important check on Presidential authority and discretion in the area of immigration.”