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This notice was posted on First and Front Streets in San Francisco in April 1942, the first neighborhood in the city to be affected by the displacement of people of Japanese descent. (National Archives)
On the day of the Japanese attack on Pearl Harbor in December 1941, President Franklin Roosevelt signed Decree 2525. Under this order, the federal government was empowered to apprehend and confine "foreign enemies", a measure which resulted in the internment of thousands of Japanese. immigrants and Japanese American citizens in camps mainly west of the Rockies.
Fred Korematsu, a 23-year-old American citizen, was ordered to visit one of these camps in 1942. He refused, pleading his case before the courts until the Supreme Court has decided the question. In the case of 1944 Korematsu c. United States, the court ruled 6-3 in favor of the government, determining that the President 's national security argument allowed the executive order to stand up.
This decision was officially rejected by the Supreme Court on Tuesday as part of Trump v. Hawaii, court upholding President Trump's ban on migrating from some Muslim-majority countries.
[Supreme Court upholds Trump travel ban]
"The reference to dissent Korematsu . . . Said Chief Justice John G. Roberts Jr. in his majority opinion. "Korematsu was seriously wrong the day it was decided, was overthrown in the court of history, and – to be clear -" has no place in the law under the Constitution. "
Roberts was responding to a dissent of Judge Sonia Sotomayor who alleged "striking parallels" between Korematsu decision and majority opinion Roberts in Asset.
"Whatever the rhetorical advantage that dissent can see in doing so," Roberts wrote, "Korematsu has nothing to do with this case."
Richard Primus, a professor of law at the University of Michigan, wrote an article specifically exploring the overlap between Korematsu and the ban on traveling in May 2017. When he reviewed this article in April of this year, he noted that "the most profound lesson of Korematsu is one that should make us unsuspected if the Supreme Court upholds the prohibition orders "- namely, that the court" is perfectly capable of morally signing demonically executive branch policies that are ostensibly (but not really necessary for national security, even when the legal arguments for the executive are weak. "
This seems to have been the reason for being Tuesday's action. We spoke with Primus over the phone to explore the story of Korematsu and its applicability to Asset.
Primus first confirmed that Roberts' assessment Korematsu was a common in the legal community.
"Korematsu "Until now, it had never been officially canceled," he said, "but in practice, it was a repudiated decision." Well-socialized lawyers have since known more about it. 39, half a century that you do not rely on Korematsu because it's shameful and, shortly after it was decided in 1944, there was a consensus that the decision Korematsu was a stain on the Supreme Court – a stain like Plessy c. Ferguson or Dredd Scott c. Sandford"Primus noted that Roberts' use of" false the day it was decided "echoed what the Supreme Court said in 1992 about Plessy.
During the campaign, Trump himself stressed that Japanese internment was a precedent for his project to ban Muslim migration to the United States. The lawyers associated with his campaign, said Primus, Korematsu as a precedent defending the idea – a move that Primus called "shocking".
During his tenure as president, this did not happen.
"The US Department of Justice's professional lawyers know better than going to court and saying," You should decide for us the authority of Korematsu& # 39; he said. "Instead, what they have to do is say,"Korematsu is nothing like this case. & # 39; "
Sotomayor's dissent, however, argues that there are specific parallels.
"As in this case, the government has invoked an ill-defined national security threat to justify a far-reaching policy of exclusion … As here, the order of exclusion was rooted in dangerous stereotypes about, among others, the supposed inability of a particular group to equate and want to harm the United States. . . . As in the present case, the government was not prepared to reveal the opinions of its own intelligence services on alleged security concerns to the very citizens it claimed to protect. . . . And as here, there was strong evidence that inadmissible hostility and animosity motivated government policy. "
The point on revealing intelligence information is important. In 2011, the Department of Justice admitted that a "key intelligence report that undermined the reason for being interned" had never been presented to the Supreme Court during of Korematsu. Instead, the Solicitor General of the time, among other things, "relied on crude generalizations about Americans of Japanese descent, such as the fact that they were disloyal and motivated by "racial solidarity".
The 1944 Korematsu decision tried to put aside the issue of race.
"Our task would be simple, our duty clear, if it was a case involving the imprisonment of a loyal citizen in a concentration camp because of racial bias" concludes this decision. "Regardless of the true nature of the assembly and resettlement centers … we deal specifically with nothing but an order of exclusion." Bring this case in the broad outlines of racial prejudice, without referring to the real dangers presented, only complicates the issue. "
In Trump v. Hawaiithe question of prejudice is more delicate.
"A sin Korematsu, there are really powerful indications that politics is motivated by the animus, "said Primus." In fact, the ban on entry would not exist without Trump's fanaticism. towards Muslims. Judge Sotomayor says so – and even the majority do not deny it. The majority said that whatever the president's articulate attitude, the question we must answer is whether this policy could serve a legitimate interest. "
Sotomayor's dissent, said Primus, argues that "we are once again giving the executive government a measure based on animosity because the executive power is hiding behind a national security claim".
[The Supreme Court’s ruling that Trump’s travel ban isn’t a ‘Muslim ban,’ annotated]
Roberts and Judge Anthony M. Kennedy in a concurring opinion seem to argue that they have concerns about the motives underlying the ban, Primus said.
"The majority recognizes that the president has expressed bad anti-Muslim attitudes," he said. "The majority and the Kennedy all agree, but say that the president expresses attitudes that are contrary to American constitutional values.This does not mean for them that they must consider the order of having motives. unconstitutional. "
Why not? Because the executive order does not explicitly designate race or religion.
If a law contains prima facie discriminatory language (as in a positive action policy), the courts apply "strict control". But since the travel ban does not explicitly use discriminatory language, the court uses a more flexible standard that essentially gives the administration the benefit of the doubt.
"In evaluating this argument, it must be remembered that everyone knows that it is well established that discrimination in the sense of order calls for a rigorous examination," said Primus, "so no government drafter minimally competent will write the discrimination in the face of the order. "
"If all this doctrine means," do not put it on the face of order, "he says," it's not really helpful. "
"The opinion of the majority works by separating the order of the president and his current attitudes and motivations," he added. On the contrary, it is largely seen through the prism of Trump's national security powers and, through this lens, is maintained.
Primus was frank in his assessment of this decision.
"It is an important premise in the constitutional system that the President receives a great deal of deference in matters of national security," he said. But, he added, "this deference has long been based on the assumption that presidents are intelligent, informed and responsible people."
"This case raises the question of when deference becomes abdication," he said. "It's one thing to give the president the benefit of the doubt in the national security affairs." In that case, doubt about the motives [on the part of the court] is made. "
Sotomayor concluded his dissent by again linking the majority view to Korematsu.
"By blindly accepting the misguided invitation of the government to sanction a discriminatory policy motivated by animosity towards a disadvantaged group, all in the name of a superficial demand for national security," she writes, " the Court redeploys the same underlying dangerous logic. Korematsu and just replace a "seriously wrong" decision with another one. "
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