The Emerging Lessons of Trump v. Hawaii

Abstract

In the years since the Supreme Court decided Trump v. Hawaii, federal district courts have adjudicated dozens of rights-based challenges to executive action in immigration law. Plaintiffs, including U.S. citizens, civil rights organizations, and immigrants themselves, have alleged violations of the First Amendment and the equal protection component of the Due Process Clause with some regularity based on President Trump’s animus toward immigrants. This Article assesses Hawaii’s impact on these challenges to immigration policy, and it offers two observations. First, Hawaii has amplified federal courts’ practice of privileging administrative law claims over constitutional ones. For example, courts considering separate challenges to the travel ban waiver process and the mass-rescission of humanitarian parole concluded that plaintiffs had not stated constitutional claims under Hawaii’s “circumscribed inquiry,” but these courts remained receptive to plaintiffs’ claims that an agency violated its obligation to provide a reasoned justification, consider reliance interests, explain itself sufficiently, or follow its own procedures. Second, Hawaii has prompted district courts to engage more deeply with the notion that different classes of immigrants are entitled to different levels of constitutional protection. This more open discussion of the contours of immigrants’ rights acknowledges immigrants as potential rights-holders but ultimately exposes the limits of a rights-based approach to protecting immigrants’ well-being.

Keywords: Trump v. Hawaii, Kleindienst v. Mandel, equal protection, due process, animus, arbitrary and capricious