Whitewashing Precedent: From the Chinese Exclusion Case to Korematsu to the Muslim Travel Ban Cases

“Whitewashing Precedent: From the Chinese Exclusion Case to Korematsu to the Muslim Travel Ban Cases” is a new article in the Case Western Reserve Law Review, written by Prof. Robert S. Chang, Executive Director of the Korematsu Center.

Abstract:

The travel ban cases test the extent of the President’s authority to promulgate orders regarding the issuance of visas and the entry of refugees.

Specifically at issue is whether the President’s actions are even reviewable by the courts, as well as whether the President exceeded his statutory authority or acted in violation of the Establishment Clause.

Though his government attorneys do not cite to or directly rely upon the Chinese Exclusion Case or Korematsu v. United States, these cases directly underlie their arguments, providing perhaps the strongest precedential authority for his actions. It is quite possible that the government attorneys believe that they cannot openly invoke these precedents.

This article argues that courts should not succumb to this attempt by the government attorneys to let these cases operate sub rosa, and instead should use this opportunity to repudiate two principles embedded in the two cases: that Congress and the Executive exercise plenary power over matters involving immigration and the border that is not subject to judicial review; and that the judiciary must defer to the Executive without meaningful judicial review when national security is invoked.

So far, federal courts have faithfully executed their role in our democratic system of checks and balances. They have fulfilled their constitutional obligations by reviewing the actions of the Executive and not merely acting as a rubber stamp to action taken in the name of national security. Time will tell whether this will hold with the Supreme Court.

Download the article here.

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