Friday, July 31, 2020
In the two 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 the President’s discriminatory rhetoric. This Essay, written for a symposium on "The Presidency and Individual Rights," assesses Hawaii’s impact on these challenges to immigration policy. It offers two observations.
First, Hawaii has prompted some courts to privilege 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 have concluded that plaintiffs have not stated constitutional claims under Hawaii’s “circumscribed inquiry,” but these courts remain 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. Similarly, the Supreme Court recently held that the Trump Administration's rescission of DACA was arbitrary and capricious, but it concluded that plaintiffs had not adequately pled an equal protection claim. 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’ substantive rights is a welcome development but ultimately exposes the limits of a rights-based approach to protecting immigrants’ well-being.