Five Unanswered Questions from Trump v. Hawaii

Abstract

Trump v. Hawaii upheld President Trump’s travel ban in its entirety. This article explores five questions left open by the majority opinion. First, what will happen on remand with respect to discovery? Second, how should lower courts treat “this President,” as opposed to “the President”? Third, how does the Constitution apply to aliens who are not seeking entry into the United States but have already crossed the border? Fourth, what is the scope of the president’s Article II power to exclude aliens? Lastly, what is the permissible scope of a nationwide injunction? The judiciary will likely have to address these issues in the near future.

Keywords: Supreme Court, immigration, due process, constitutional law