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 violated the Establishment Clause. The cases that provide the strongest support for his actions are the cases that upheld Asian Exclusion in the late 1800s and early 1900s and the incarceration of Japanese Americans during World War II. Yet the Department of Justice attorneys do not cite directly to the Chinese Exclusion Case or Korematsu v. United States. Instead, they cite to cases that cite to or rely upon them, without acknowledging and, in some instances, obscuring the connection. This citation practice is an attempt to whitewash racist precedent. The talk draws from Asian American history and critical race theory to situate the Muslim travel ban litigation at the intersection of immigration and national security exceptionalism.
Robert S. Chang is a Professor of Law and the founder and Executive Director of the Fred T. Korematsu Center for Law and Equality at Seattle University School of Law. He and the Center have received numerous recognitions for their work, including most recently the 2018 M. Shanara Gilbert Human Rights Award from the Society of American Law Teachers. He is the author of Disoriented: Asian Americans, Law, and the Nation-State (1999) and the co-editor of Minority Relations: Intergroup Conflict and Cooperation (with Greg Robinson 2017), as well as numerous law review articles in the area of race and interethnic relations. He served as co-counsel representing high school students in Tucson who challenged the constitutionality of an Arizona statute that resulted in the termination of the Mexican American Studies Program in the Tucson Unified School District. That case, after several years and a positive ruling at the Ninth Circuit went to trial in summer 2017, with a final judgment and permanent injunction issued on Dec. 27, 2017, finding that the statute had been enacted and enforced in violation of the 1st and 14th Amendments. He is currently serving as co-counsel in two cases in Alaska challenging the involuntary psychiatric hospitalization and forced psychotropic medication of Native Alaskan foster children. The Korematsu Center has been active filing amicus briefs in the Muslim travel ban cases and the rescission of DACA cases. Students from his Civil Rights Clinic have assisted on these and other cases.
This talk is part of a year-long series, organized by the Yale Center for the Study of Race, Indigeneity, and Transnational Migration (RITM), in partnership with the Asian American Cultural Center at Yale and the Asian American Studies Working Group, that highlights new work that advances the field of Asian American Studies.