Dec. 19, 2017 – On Dec. 8, 2017, a lawyer for the U.S. government stood before a federal appeals court to defend President Donald Trump’s third attempt to ban immigrants and visitors from predominantly Muslim countries. He argued that while there may be legal limits on presidential power to ban noncitizens from the United States, the courts should still defer to the executive branch, taking Donald Trump’s word for it that he is no longer intent on banning Muslims from the United States.
The judges might have asked, “What is the historical precedent that supports President Trump’s position on the travel ban?” None of them asked that precise question, but the President himself gave a chilling answer when he proposed the ban: Korematsu v. United States, the 1944 Supreme Court decision upholding Executive Order 9066, which banished Japanese Americans from their homes and forced them into prison camps. The Korematsu ruling came down 73 years ago today and the lessons from it could not be more relevant.
While Korematsu is technically still on the Supreme Court’s books, the decision is nearly universally repudiated today. In 1988, Congress passed the Civil Liberties Act, which issued a formal apology and offered reparations to each survivor. And the Acting Solicitor General of the United States made a formal confession of error in 2011, noting it as a deeply regretted episode of American history, an instance of wartime hysteria leading to a gross injustice.
President Trump didn’t stop at invoking the racism and outright chicanery of the U.S. government that underlay the Korematsu decision. He also declared that “Islam hates us” and that “we’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.” In March 2017, after taking office and attempting to carry out the first two versions of his Muslim ban, Donald Trump asserted that “[t]he assimilation [of Muslims in the U.S.] has been very, very hard. It’s been a very, very difficult process”— smearing more than 3 million people in one fell swoop.
Today, the president echoes General John DeWitt, the commander of the U.S. Army’s Western Defense Command during World War II, who infamously supported the wholesale “exclusion” of Japanese Americans, saying: “A Jap’s a Jap. It makes no difference whether the Jap is a citizen or not.”
The echoes of Korematsu don’t end with the reliance on racist stereotypes. Donald Trump has repeatedly asserted that his Muslim ban serves national security interests. His latest version, issued on Sept. 24, is couched vaguely in terms of the national interest. But reports by the Department of Homeland Security leaked in February showed that citizenship is an “unlikely predictor” of terrorism threats to the United States and that very few people from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, the countries listed in the first Muslim ban, have committed terrorism. A bipartisan group of former national security officials has filed declarations and briefs with the federal courts stating that there is no legitimate national security purpose served by the ban. And the Cato Institute has filed an amicus brief setting out its research showing that the president’s national security assertions are simply wrong.
During World War II, the American government also invoked national security to justify what should have been unjustifiable—the detention of U.S. citizens solely because of their national origin and ethnicity—and insisted that the courts must defer to an agency study to do so. In Korematsu, the government submitted a report by General DeWitt asserting that Japanese Americans posed an unacceptable risk of sabotage on the west coast. Decades later, researchers proved that government lawyers had suppressed critical evidence: The Office of Naval Intelligence, the FBI, and the Federal Communications Commission had all debunked the allegations made in the DeWitt report before it was submitted to the Supreme Court and intelligence and law enforcement investigations had concluded that only a handful of individuals posed a threat and had already been arrested.
The Korematsu decision remains deeply disturbing, particularly because the government still takes the same position in the Muslim ban litigation. In support of a ban affecting Muslims categorically, President Trump declared, “You don’t know who is who.” In 1944, the Supreme Court used the same justification: “It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew [and detention] order as applying to the whole group.” Today, the president asks the courts to double down on Korematsu’s discredited conclusion.
Chillingly, in Korematsu the Supreme Court explicitly overrode fundamental constitutional norms on the fraudulent word of the executive branch. The court noted that the incarceration of a group based on their race “is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.”
In his dissent, Justice Jackson noted, “[O]nce a judicial opinion rationalizes such an order [as Executive Order 9066] to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination …. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
Since Korematsu, generations of civil rights lawyers have been inspired to take action to prevent a recurrence. In the 1980s, historian Peter Irons and researcher Aiko Yoshinaga-Herzig uncovered the government’s deceptions and young Asian American lawyers, including Dale Minami, Don Tamaki, Bob Rusky, Karen Kai, Lori Bannai, Dennis Hayashi, Donna Komure, Leigh Ann Miyasato, Eric Yamamoto, Ed Chen, Akira Togasaki and Debbie Ching, set out to right the wrong the U.S. government committed against Fred Korematsu, Min Yasui, and Gordon Hirabayashi, three Japanese Americans who courageously challenged the government’s “exclusion” and curfew laws during World War II.
Through the exercise of legal ingenuity and hard work, the lawyers succeeded in exposing the government’s 40-year-old lies and won a U.S. district court order vacating the wartime convictions. Today, the children of Fred Korematsu, Gordon Hirabayashi, and Min Yasui have filed friend-of-the-court briefs to support Muslims in the United States and others who have challenged President Trump’s ban. Their message is simple and profound: “Blind deference to the Executive Branch, even in areas in which decision makers must wield wide discretion, is incompatible with the protection of fundamental freedoms. Meaningful judicial review is an essential element of a healthy democracy.”
In short, we won’t go back.