Korematsu overruled or reaffirmed?

On June 26, 2018, by a 5-4 majority, the Supreme Court in Trump v. Hawaii upheld President Donald Trump’s so-called “Travel Ban,” the thrice-revised executive orders barring entry of people from Muslim-majority nations.

When Trump announced his first order in January 2017, travelers having nothing to do with terrorism were detained, U.S. residents were stranded abroad, and families were separated. Thousands of validly issued visas were canceled. Hundreds with such visas were prevented from boarding planes or denied entry on arrival, including refugees — running for their lives from terrorism — who had already undergone a stringent vetting process.

Invoking “national security,” the government claimed that a Homeland Security report justified these actions. However, not only did the government refuse to reveal this report, but it also asserted that the Court must bow to the will of the president and give him near-absolute authority to impose, in Justice Sonia Sotomayor’s words, “an exclusionary policy of sweeping proportion.”

Citing Trump’s speeches and tweets replete with anti-Islamic animus and calling for “a total and complete shutdown of Muslims entering the United States,” opponents argued that the Travel Ban has little to do with enhancing security, and instead, is the bigoted “Muslim Ban” that Trump had promised on the campaign trail.

Echoes of 1942 when another executive order, 9066, led to almost 120,000 Japanese Americans being incarcerated in detention camps.

Against the challenges of Fred Korematsu, Gordon Hirabayashi and Minoru Yasui, the government exhorted the Court not to “second-guess” the judgment of the military that locking up these Americans was necessary to the nation’s safety. Shamefully, the Court did not ask probing questions, thereby abdicating its traditional role as a check and balance on the Executive Branch. The result was a civil liberties disaster.

The gravity of the Court’s abdication was underscored in 1983 when secret World War II-era intelligence reports and Justice Department memoranda surfaced admitting that Japanese Americans had committed no wrong and posed no threat, and characterizing the Army’s claims that Japanese Americans were spying as “intentional falsehoods.” These reports were never presented to the Court, having been suppressed, altered or destroyed. Arguably, the Court’s passivity and acquiescence opened the door for this massive fraud to occur.

Fast forward to the Court’s decision in Trump v. Hawaii wherein Chief Justice John Roberts declared: “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — has no place in law under the Constitution.”

A laudatory statement to be sure, but do these words have any meaning? While repudiating Korematsu, the Court’s actions ironically reinforced one of its most dangerous elements by allowing the government’s invocation of national security to shield it from any judicial inquiry verifying whether the Travel Ban has any basis in fact or reason.

The decision penned by Justice Roberts is reminiscent of Justice Hugo Black’s opinion in Korematsu. Black wrote that racial discrimination is “odious to a free people,” and ruled that when the government makes distinctions based upon race, the Court must subject such distinctions to the “most rigid scrutiny” to verify that they are based on “imminent threats to public safety.”

After making this laudatory pronouncement, however, Black failed to apply it, dismissively claiming that the removal of Japanese Americans had nothing to do with racial hostility, and concluding without any judicial scrutiny that the mass incarceration was a “military necessity.”

Justice Roberts makes a similar pivot. He pronounces Korematsu “overruled,” but in the same breath, dismissively concludes that Korematsu has nothing to do with the Travel Ban. Worse, despite Trump’s overtly anti-Muslim statements, Roberts accepts the government’s word for it that the ban’s intrusion on fundamental freedoms is necessary to make the country safe without requiring disclosure of the Homeland Security report claimed to contain the facts justifying the ban. Justice Sotomayor describes this “blind” court deference to the president as an affront to the judiciary’s role as the independent third branch in America’s checks-and-balances democracy. Urging careful scrutiny, she concludes, “Our Constitution demands, and our country deserves, a judiciary willing to hold the coordinate branches to account when they defy our most sacred commitments.”

For the same reason, in 1944, Justice Robert Jackson warned that “Korematsu lies around like a loaded weapon ready for the hand of any authority who could bring forward a plausible claim of an urgent need.” In 2018, the Court may have reloaded this weapon, albeit not in Korematsu, but in the Travel Ban case.

As Professor Peter Irons has written, the parallels between Korematsu and the Travel Ban are disturbing: both arose out of war, both featured the government invoking “national security” to shield its actions from judicial scrutiny, both had abundant evidence of prejudice expressed by high officials against a targeted minority, both involved hidden intelligence reports that the government refused to disclose, and both ended with the Court failing to examine whether such sweeping deprivations of fundamental freedoms actually were necessary, or were merely the fulfillment of campaign promises or racist policies.

During times like these, we need to remember that no one, not even a president, is above the law.

Donald K. Tamaki, a partner in the San Francisco law firm, Minami Tamaki LLP, is a member of the coram nobis legal team which represented Fred Korematsu in 1983 to reopen and vacate his WWII criminal conviction for violating the orders resulting in the incarceration of almost 120,000 Japanese Americans. He is a spokesperson for the StopRepeatingHistory.Org public awareness campaign. Views expressed in the preceding commentary are not necessarily those of the Nichi Bei Weekly.

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