ARTICLE II AND ANTIDISCRIMINATION NORMS.

• Author: Huq, Aziz Z.

The Supreme Court's opinion in Trump v. Hawaii validated a prohibition on entry to the United States from several Muslim-majority countries and at the same time repudiated a longstanding precedent associated with the Japanese American internment of World War II. This Article closely analyzes the relationship of these twin rulings. It uses their dichotomous valences as a lens on the legal scope for discriminatory action by the federal executive. Parsing the various ways in which the internment of the 1940s and the 2017 exclusion order can be reconciled, the Article identifies a tension between the Court's two holdings in Trump v. Hawaii. Contrary to the Court's apparent assumption, the internment cannot easily be rejected if the 2017 travel ban is embraced. There is no analytically defensible and practicably tractable boundary between the two. Recognizing this disjunction and explaining why the Court's effort to separate past from present practice cannot prevail, I argue, reveals what might be called an "Article II discretion to discriminate." By identifying and mapping this form of executive discretion, the Article offers a critique of the Court's recent construction of executive power in light of historical precedent and consequentialist justifications. It further illuminates downstream distributive and regulatory consequences of executive power in the context of ongoing judicial constriction of Article II discretion over regulatory choices.

Table of Contents Introduction I. Two Histories of Exclusion and Internment A. Internment (1942-1945) B. Exclusion (2017-?) 1. The First Executive Order 2. The Second Executive Order 3. The Third Executive Order 4. The Supreme Court 5. Consequences II. Between Internment and Exclusion A. Continuities B. Distinctions (and the Lack Thereof) 1. Internment v. Exclusion 2. Immigration v. War 3. Citizen v. Noncitizen III. The Article II Discretion to Discriminate A. Justifications 1. Formalism 2. Functionalism and History 3. Functionalism and Comparative Institutional Competence B. Implications CONCLUSION INTRODUCTION

When can the federal government disadvantage a suspect class because of an animus against it? When the Supreme Court in its June 2018 Trump v. Hawaii decision validated the so-called travel ban--prohibiting entry by nationals largely from Muslim-majority countries (1)--it also repudiated a longstanding precedent related to the Japanese American internment of World War II, Korematsu v. United States. (2) Although this repudiation was formally unnecessary to the case's resolution, it is difficult to gloss as anything other than an effort to amend the law--and as such an intentional and legally efficacious piece of text. Yet the brevity of the Court's presentation seeds a puzzle: Why did the Court's five-justice majority conclude that these twin holdings were compatible? How, as a constitutional matter, can exclusion circa 2017 be embraced (however gingerly) while internment circa 1942-1945 is kept at bay?

The terms of this reconciliation, such as it is, will likely be consequential both in practical terms and as a matter of constitutional theory. An integration of the Travel Ban Case's two holdings matters practically since it will shape whether, or under what circumstances, the federal executive has power to act adversely by relying on negative stereotypes or facial classifications concerning a suspect class. This follows without regard to whether one believes animus in fact tainted the travel ban's gestation. The reconciliation of the Travel Ban Case's two holdings is also theoretically salient because of the light it casts on the historical and structural assumptions of Article II jurisprudence. Contrasting these holdings with the basic terms of structural constitutionalism illuminates Article II's potential as an engine of, rather than a means of abating, invidious social stratification.

In this Article, I examine the disjunctive twin holdings of the Travel Ban Case as a step toward identifying and anatomizing an "open-textured," and hence open-ended, Article II discretion to discriminate. (3) My first task is a close doctrinal dissection of the potential ways to synthesize the case's two holdings into a coherent whole. There are, to be sure, differences between the scope, objects, and effects of the Japanese American internment and the 2017 travel ban. These might seem to allow some constitutional partitioning. But I argue that none of the potential doctrinal distinctions yields a tenable demarcation between the prohibited and the permitted. Even the most robust--the citizenship line--proves far more permeable in practice to discriminatory coercion than it seems at first blush. Rather than peeling exclusion and internment apart, close analysis of these two holdings in a wider doctrinal setting reveals a plethora of parallelisms but a poverty of plausible separations. If the Travel Ban Case's two holdings are to be held in view simultaneously, it will require what F. Scott Fitzgerald once called "a first-rate intelligence." (4)

My second, more substantial and ambitious, aim is to explore the historical and analytic foundations of the ensuing open-textured Article II discretion-to-discriminate authority. A reconstruction of its doctrinal rationales reveals both formalist and functionalist justifications but no straightforward warrant based on either text or structure. At the same time, the historical record is replete with instances of discriminatory executive action, and does not support the proposition that coercive executive power will generate more public goods than harms when used without checks on discriminatory action. As a result, comparative institutional competence fails as a justification for judicial deference. This is especially so since courts typically operate as back-end insurance, and never as front-line decisionmakers formulating official policy in the first instance. Compounding this problem is the familiar fact that an embrace of judicial deference to executive discretion is achieved at the cost of asymmetrical blindness to the harm inflicted on suspect minorities. Perhaps as importantly, if less noticed, this Article II discretion to discriminate cannot and should not be surveyed in isolation. Rather, that discretion predictably interacts with other strands of Article II jurisprudence to shape policy outcomes and the policymaking calculus of the federal government. Instead of serving as a cost-justified insulation of sound executive discretion, the Article II discretion to discriminate distorts federal governance--similar to the distorting effect of a subsidy for an inefficient domestic industry. As a result, that discretion will tend to elicit outcomes with no clear correlation to aggregate social welfare. Counterintuitively, judicial expansion of Article II discretion likely works over time to undermine the efficient federal production of valued public goods.

The titular locution here is an important constraint on my claim: it is Article II and Article II alone that now comes packaged with open-textured discretion to discriminate on the basis of suspect classification, and to do so relatively candidly. My emphasis in this regard diverges from standard accounts of antidiscrimination norms in two ways. First, it is often the case that a challenged executive action is predicated on an authorizing federal law, such that it superficially makes more sense to talk of the action as a joint product of Congress and the executive. Indeed, both internment and the travel ban rested on some arguable claim to statutory authority. (5) But in both cases, I show, the impetus and design of the challenged policy came primarily from the executive. (6) Congressional imprimaturs, such as they were, were nominal. The Japanese American internment, for example, began as an executive order. (7) Only more than a month later did the military receive Congress's benediction in the form of a statute criminalizing violations of past and prospective orders. (8) As importantly, the judicial rationales for the narrowing of antidiscrimination norms flow from a theorization of Article II and not an understanding of federal power in the aggregate. Indeed, when it comes to the judicial evaluation of discriminatory action, Congress does not enjoy the same margin of policy discretion as the executive branch. (9)

Article II glosses of executive action pursuant to federal statutes are, to be sure, standard fare in the Supreme Court, far afield from the questions examined here. Consider, for example, the Court's statement in Heckler v. Chaney that an administrative agency's decision not to regulate

shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict--a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to "take Care that the Laws be faithfully executed. (10) On Justice Jackson's canonical formulation, the combination of Article I and Article II authorities creates the "strongest of presumptions and the widest latitude of judicial interpretation." (11) It commonly yields in practice "a presidential authority to complete legislative schemes" above and beyond the strict terms of legislative text. (12) Article II's penumbra, in short, penetrates and pervades much of what is formally denominated statutory law.

Notwithstanding this doctrinal homology, a discrepant Article II authority to discriminate is in tension with the prevailing view that constitutional antidiscrimination provisions under the Fifth and Fourteenth Amendments bind equally all official actors, whether federal or state. (13) In part, I suspect this is because scholarship on antidiscrimination has not engaged with developments in the separation-of-powers domain. To make sense of the discrepant power identified here, I will emphasize a rich history...