Supreme Court re Trump Travel Ban: Remember Korematsu v. United States!


Prologue:  After the Japanese surprise air attack on Pearl Harbor on December 7, 1941,  President Franklin Delano Roosevelt gave his famous “day of infamy” speech” before a joint session of Congress. The United States then declared war on Japan and its Axis partners Germany and Italy. This marked our entry into World War II which would last until l945. The country mobilized in many ways, war plants building planes, tanks, ships and all the weapons  needed  for both the ETO , European Theater of Operations and the Asian theater at the same time. A draft of service men was begun and all men , eighteen and older had to register.

In California, there were large settlements of Japanese immigrants who had come during previous decades and established very productive farms on the worst swampy lands they were allowed to purchase.  There was jealousy toward them already because of their skills in farming.  About 120,000 Japanese  Americans had lived peaceably for decades  Families had raised children who had been born here and were American citizens.  Overseeing Calilfornia, Oregon and Washington States was the West Coast Defense Command headed by General John De Witt . He was known to be suspicious of the Japanese as possible threats to security and answered F.D.R. with “A Jap is a Jap!” when questioned.  De Witt did not differentiate between the immigrant parents and their children who were citizens. He recommended removal and internment of all Japanese Americans from California, Oregon and Washington.  It is important to note that in Hawaii, with one third Japanese population, there was never any such internment  instituted and there was never an incident of sabotage during the entire war.

F.D. R. signed the historic executive order in 1942 that gave the Japanese Americans one week to pack one suitcase each and report for internment. They were forced to sell their farms at rock bottom prices to eager buyers, but did not protest the removal order.  Their culture was one of dignity and reserve when faced with hostile legal authority.  They dressed in their best clothing and boarded trains to unknown temporary housing in such places as empty race course stables.  From there, in the months ahead they were transferred to camps in desert settings far from established towns or cities.  The camps were ringed with barbed wire and patrolled by soldiers. Housing was rugged barracks constructed for multiple families. The names reverberate across the years,  Manzanar, Topaz, Gila River, Heart Mountain, Jerome, Tule.  In these desolate camps in Utah, Arizona, Arkansas and California, they continued their lives and created schools,  newspapers, churches.  They also grew their gardens of desert cacti and other plants able to survive and grow with sparse water. In 1943, it became possible for young men of military age in the camps to enlist in the United States Army. Certain of these Japanese U.S. citizens did just that. They left the camps and became the famous 442nd Army infantry regiment known as  “Go for Broke” . They fought their way up Italy and through Germany to eventually lead the Victory Parade in Paris as the most decorated unit in the entire European Theater of Operations.

History: In 1944, Fred Korematsu, son of Japanese immigrants filed a lawsuit: Korematsu  v. United States that reached the  Supreme Court.  December, 1944  by a six to three decision, the court found him guilty  of evading forced expulsion to an internment camp. That decision upholding F.D.R’s executive order  has never been formally disavowed.  In 1982, a Congressional commission concluded that “the internment of Japanese Americans was a grave injustice” caused by racial prejudice, war hysteria and a failure of political leadership”.  They added that “the decision in Korematsu lies overruled in the court of history.”   Justice Antonin Scalia, ranked  Korematsu with Dred Scott, the 1857 decision that black slaves were property and not citizens, as the court’s most “disastrous rulings.”  Justice Robert Jackson in his dissent in Korematsu called it  “a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”

President Trump’s Travel Ban # Three.  Donald J . Trump, said on December 8, 2015, early in his campaign, “I’m calling for a shutdown of Muslims entering the United States. Take a look at what F.D.R. did many years ago. He did the same thing. This is a president who is highly respected by all.”   Of course, the executive order F.D.R. signed was not the “ same thing”.  The issue of exclusion of an entire group based on nationality or religious bias is not the same as removing and interning a group who are already living in the country.

On Wednesday, April 25, the Supreme Court heard arguments from the administration’s Solicitor General, Noel Francisco and Neal Katyal, the leading lawyer representing the challengers to Trump’s Third Travel Ban.  In 2011, Neal Katyal had been the acting solicitor U.S. general who issued a “confession of error”  for the actions of government lawyers in the  Korematsu case. The challengers ,including Hawaii, several individuals and a Muslim group, argued that the ban was “the fulfillment of the president’s promise to prohibit Muslim immigration to the United States.” There were also two supporting briefs from children of Japanese-Americans held in the detention camps and several public interest groups. Lawyers for the Japanese-Americans Citizens League told the justices, “History teaches caution and skepticism when vague notions of national security are used to justify vast unprecedented exclusionary measures that target disfavored citizens.”

The challengers had hoped that Justice Anthony Kennedy, known as the swing vote,  or Chief Justice John Roberts would join the four liberal justices,  Ruth Bader Ginsburg, Sonia Sotomayor,  Stephen Breyer and Elena Kagan and find the  Travel Ban  unconstitutionally discriminatory against Muslims.  However, as the questioning unfolded , the five member conservative majority appeared hostile to challengers’ questions and ready to support the Third Ban.  Chief Justice Roberts asked at one point,  whether Mr. Trump would ever be able to address immigration in light of his campaign statements. “Is there a statute of limitations on that?” Justice Kennedy pressed Mr. Katyal whether judges should second guess a president’s national security judgements.  He then added, skeptically, “That’s for the courts to do, not the president?”  Mr. Katyal responded that presidents ordinarily deserve substantial deference. But he said the travel ban was so extreme that the Supreme Court should step in. Justice Kennedy also noted that the latest travel ban was longer and more detailed than proclamations issued by earlier presidents.

Chief Justice Roberts posed  hypothetical questions to Mr. Katyal about the president’s power to thwart terrorist attacks.  “We have 100 percent solid information that on a particular day, nationals from Syria are going to enter the United States with chemical and biological weapons.  They could kill tens of thousands  Americans. In that situation, could the president ban the entry of Syrian nationals on that day?”   Mr. Katyal said that presidents have the power to address emergencies, but not to create sustained discrimination.

After hours of oral arguments, it appeared that the justices were focused primarily on threats to national security and any presidents’s responsibility to protect the nation.  They did not agree with former district court judges and appellate judges decisions on the first two travel bans  as well as the third that focus on Donald  J. Trump’s speeches and comments since 2015 and throughout  his campaign that revealed his strong bias against Muslims.  All the previous decisions at the District Court level and the Appeals Court levels had emphasized the direct link of his bias toward Muslims to the First and Second Bans as well as the Third.

Toward the end of the arguments, Mr. Katyal said Mr. Trump and his advisers could easily have  repudiated his statements.  “Instead, they embraced them.”  The chief justice then asked, “If tomorrow he issues a proclamation saying that he is disavowing all those statements,  then the next day he can re-enter this proclamation?”  Mr. Katyal responded, “Yes.”  In his rebuttal argument, Mr. Francisco insisted that Mr. Trump has already made clear that “he had no intention of imposing the Muslim ban. He has made crystal clear that Muslims in this country are great Americans…”  “This policy is about foreign policy and national security.”  The nine justices will have until June to make a final decision on the Third Trump Travel Ban.

We who are United States citizens have listened to the president’s words, comments and speeches during the first year of his presidency as well as during the campaign.  Let us hope we have learned to judge him by his actions as well as his words throughout these long months.

Is it too much to expect that the Chief Justice and Associate Justices of the highest court in the land will remember Korematsu v. United States. What  happened in 1942 when F.D.R. listened to General De Witt.  And decided that all Japanese Americans, including citizens and their parents,  would be removed and interned far from their homes because they were a threat to the security of the nation.   There was no evidence to support this drastic decision to remove and intern 120,000 Japanese Americans, half of whom were citizens!  

The members of the Supreme Court would be wise to remember the words of the philosopher George Santayana: “Those who fail to learn from history are doomed to repeat it.”

………………………………………………………………………………………………….. Joyce S. Anderson









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