Masquerading Behind a Facade of National Security
abstract. In 1944, the Supreme Court in Korematsu v. United States upheld President Roosevelt’s executive order initiating the mass removal and incarceration of 120,000 Japanese Americans on falsified claims of group disloyalty. In the ensuing decades, some courts and scholars have cited Korematsu as precedent for extreme judicial deference when reviewing sweeping restrictions of civil liberties defended as national security measures. In sharp contrast, others have highlighted the World War II-era decision as a cautionary tale about the harm to vulnerable minorities and the damage to American democracy that can occur when the judiciary abandons its role as a guardian of fundamental liberties. To these commentators, Korematsu’s principle of exceeding judicial passivity is a “loaded weapon,” ready for the hands of future overzealous or unscrupulous government leaders.
Seventy-five years later, Korematsu remains startlingly significant, especially after the Supreme Court’s 2018 ruling in Trump v. Hawaii that repudiated a key part of Korematsu (mass racial incarceration) while replicating another key part (extreme judicial deference).This significance is highlighted by a pressing question for a constitutional democracy both concerned about national security and committed to the rule of law: what will happen when those detained, harassed, or discriminated against in the name of national security turn to the courts for legal protection? This Essay refracts this question through the lens of Korematsu and its 1984 coram nobis reopening, examining how courts will—and should—respond to the dual needs to promote national security and protect fundamental democratic liberties.
2019 marks the seventy-fifth anniversary of the Supreme Court’s decision in Korematsu v. United States.1 In that case, the Court upheld President Roosevelt’s 1942 executive order2 initiating the mass removal and incarceration—often called the “internment”—of 120,000 Japanese Americans on falsified claims of group disloyalty.3 In the ensuing decades, some courts and policy makers have relied on Korematsu, either explicitly or implicitly, as precedent for extreme judicial deference when reviewing sweeping restrictions of civil liberties justified in the name of national security.4 In sharp contrast, others have highlighted the World War II-era decision as a cautionary tale about the harm to vulnerable minorities and the damage to American democracy that results when the judiciary abandons its role as a guardian of fundamental liberties.5 These commentators have characterized Korematsu’s principle of exceeding judicial passivity as a dangerous precedent, ready for deployment by overzealous or unscrupulous government leaders.6
In 2014, Justice Scalia reflected this latter view when responding to a prescient question about the continued relevance of Korematsu. Justice Scalia stated that “Korematsu was wrong . . . . But you are kidding yourself if you think the same thing will not happen again . . . .”7 By that time, Korematsu had been sorely discredited by judges and scholars,8 but the Court had never formally overruled any part of it. When Justice Scalia was then asked how the Court would likely rule in a similar case today, he answered by reciting the Latin phrase “Inter arma enim silent leges[.] In times of war, the laws fall silent.”9
As Justice Scalia suggested, judges tend to sacrifice constitutionally protected liberties in the face of fears about the nation’s security. Not only do courts allow the executive branch to enforce reasonable national security measures; some judges turn a blind eye to unfounded or even fabricated security claims, as the Korematsu Court did in 1944.10 The laws fall silent, and the vulnerable go unprotected. As Justice Scalia emphasized, it could “happen again.”
Justice Scalia’s response hearkened back to Justice Jackson’s warning in his scathing Korematsu dissent. Justice Jackson warned that the Court’s decision in Korematsu—which upheld the executive order despite the lack of bona fide proof of “[p]ressing public necessity”11—served as a dangerous precedent for future violations of civil liberties.12 Korematsu stood as a “loaded weapon,” ready for the hands of any government authority who could “bring forward a plausible,” even if unfounded, “claim of an urgent need.”13
Korematsu thus remains startlingly significant—especially after the Court’s recent ruling in Trump v. Hawaii,14 upholding President Trump’s 2017 “travel ban.” In its ruling, the Court appeared to repudiate Korematsu’s validation of mass racial incarceration while replicating its “logic” of unconditional deference to the President. As a constitutional democracy both concerned about national security and committed to the rule of law, Korematsu’s continuing significance is highlighted by a pressing question for the United States: what will happen when those detained, harassed, or discriminated against in the name of national security—not because of their actions but largely because of race, religion, associations, or expressed views—turn to the courts for legal protection?
This Essay addresses that question through the lens of Korematsu and its 1984 coram nobis reopening to examine how courts will—and should—respond to the dual needs to promote the nation’s security and protect fundamental democratic liberties. Part I describes how, in Korematsu, the Court turned a blind eye to the executive’s falsified claims of military necessity. Part II addresses the post-9/11 era and its “chameleonic deployment” of Korematsu15 to either justify or reject sweeping ethnicity- and religion-tinged executive actions. Part III charts the civil liberties challenges to President Trump’s 2017 executive orders. It assesses the Court’s distortion of Korematsu in declaring “wholly inapt”16 the likening of key aspects of Korematsu to Trump while upholding the entry ban on those from Muslim-majority countries.
Part IV asks whether, in reviewing restrictions of civil liberties, courts must always defer to the executive’s assertions of national security—even if seemingly unfounded—or whether, in some situations, they can closely scrutinize those assertions. The themes of the first four Parts coalesce in our conclusion. This closing Part charts a doctrinal and realpolitik opening for further shaping Korematsu’s legacy: uplifting judicial independence by affirming heightened scrutiny as an integral pillar in the edifice of a functioning constitutional democracy.
I. korematsu and judicial deference
The Court in Korematsu validated the removal and, indirectly, the prolonged mass imprisonment of mostly American citizens17—without charges, trials, or evidence of individual disloyalty—despite the Constitution’s commands of due process and equal protection. As the U.S. Court of Appeals for the Third Circuit observed in 2015 in a Muslim-American community’s suit against the New York police for illegal harassment and surveillance,18 when incarcerated Japanese Americans during World War II “pleaded with the courts to uphold their constitutional rights, [the Supreme Court] passively accepted the Government’s representations that the use of [racial] classifications was necessary to the national interest. In doing so, we failed to recognize that the discriminatory treatment of approximately 120,000 persons of Japanese ancestry was fueled not by military necessity but unfounded fears.”19
A. Korematsu v. United States
In 1942, Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui separately challenged Executive Order 9066—which was race-neutral on its face—along with its implementing military orders that imposed a racial curfew, removal, and mass incarceration. The Supreme Court upheld the temporary curfew order in Hirabayashi and Yasui in 1943,20 deferring to the President and Congress in their exercise of war powers, while delaying a ruling on the far more serious removal and confinement orders.21 Nearing the war’s end in December 1944—and with almost 90,000 still imprisoned—the Court in Korematsu validated the forced removal of all West Coast persons of Japanese ancestry.22
Justice Black, a former Ku Klux Klan member,23 wrote for the six-member majority. He first disclaimed overt prejudice,24 ignoring the blatant racial animus conveyed by General John DeWitt in issuing the military orders—including General DeWitt’s public explanation that even for American citizens, the “racial strains are undiluted” and “a Jap is a Jap.”25 In disclaiming racial prejudice, Justice Black also ignored the fact that the exclusion orders applied only to persons of Japanese ancestry—mostly American citizens—and that the orders applied indefinitely to every member of the racial group on the West Coast.26 He observed that the United States “feared an invasion of our West Coast” by Japan and that the military had perceived an urgent need to take “precautionary measures.”27 But instead of carefully parsing the factual record for threats posed by Japanese Americans, Justice Black deferentially accepted the government’s claim that the racial group posed the “gravest imminent danger to the public safety,”28 declaring “we cannot reject as unfounded the judgment of the military authorities and of Congress”29 about “pressing public necessity.”30
B. The Coram Nobis Reopenings
In 1983, based mainly on the discovery of World War II-era documents, Korematsu, Hirabayashi, and Yasui separately filed coram nobis petitions seeking to reopen their cases and set aside their convictions for refusing to abide by General DeWitt’s curfew and exclusion orders. All three succeeded.31The writ of coram nobis is a rarely employed common law vehicle for reopening a “manifestly unjust” criminal conviction—usually on grounds of egregious governmental misconduct—where petitioners have served their sentences, and they and their community suffer continuing prejudice from the conviction.32
The Korematsu, Hirabayashi, and Yasui coram nobis reopenings revealed a “scandal without precedent in the history of American law.”33 The litigation showed that, during World War II, the government had deliberately misled the courts and the American public about the ostensible threat posed by Japanese Americans, effectively deploying them as scapegoats.34 The War and Justice Departments first wrongly intimated that Japanese Americans had committed espionage in support of Japan’s Navy, then falsely asserted that there had been insufficient time to identify and detain the disloyal—and thus that the entire racial group had to be locked up.35
Officials from the War and Justice Departments made this dissembling stick by concealing crucial evidence that directly refuted the government’s claim of military necessity. The officials intentionally buried the assessments of major intelligence services, including the Federal Bureau of Investigation (FBI), the Federal Communications Commission (FCC), and the Office of Naval Intelligence (ONI).36 Collectively, after thorough investigations, these intelligence services had found Japanese Americans to be loyal as a group, cleared them of espionage, and recommended against group-based treatment.37 Indeed, FBI Director J. Edgar Hoover wrote to the U.S. Attorney General that the frantic push for mass confinement appeared to be based on politics, not facts.38 But all this crucial exculpatory evidence was deliberately covered up.39
The Korematsu and Hirabayashi coram nobis litigation also revealed that World War II executive branch leaders—including an Assistant Attorney General, a War Department official, the U.S. Solicitor General, and General DeWitt—had helped distort and fabricate pivotal facts. Prior to Hirabayashi, DeWitt’s completed and printed final report was recalled and altered to conceal its explicitly racist rationale for the mass incarceration and to recite key facts about temporal exigency that DeWitt and other officials knew to be false.40
Justice Department lawyers drafting the government’s Hirabayashi and Korematsu briefs vehemently protested as a matter of conscience, excoriating their superiors for the apparent “suppression of evidence”41 and the presentation to the courts of “willful historical inaccuracies and intentional falsehoods.”42 The principal drafter of the government’s Korematsu brief wrote to the Assistant Attorney General that “General DeWitt’s report makes flat statements concerning radio transmitters and ship-to-shore signaling which are categorically denied by the FBI and the Federal Communications Commission. There is no doubt that these statements are intentional falsehoods.”43 The government’s lawyer concluded that “[t]here is in fact a contrariety of information and we ought to say so” to the Court.44 Nevertheless, the Justice Department ultimately decided not to alert the Court to the DeWitt report’s deliberate misstatements about ostensible Japanese American espionage.45
The government never formally submitted into evidence DeWitt’s report that set forth the facts supposedly showing Japanese Americans’ imminent danger to public safety.46 The Justice Department simply asked the Court to take judicial notice of the facts recited in this outside-the-record report47—with no cross-examination or opportunity to introduce rebuttal evidence. As Justice Jackson observed in his dissent,
How does the Court know that these orders have a reasonable basis in necessity? No evidence whatever on that subject has been taken by this or any other court. There is sharp controversy as to the credibility of the DeWitt report. So the Court, having no real evidence before it, has no choice but to accept General DeWitt’s own unsworn, self-serving statement, untested by any cross-examination . . . .48
The “sharp controversy” Justice Jackson referred to was sparked by a Harper’s Magazine article in which the naval intelligence officer who authored the suppressed ONI report, Lieutenant Kenneth Ringle, writing under pseudonym, publicly exposed the extensive intelligence undercutting the executive order and ensuing military orders.49 In that report, the ONI determined that Japanese Americans were loyal as a group, that “the entire ‘Japanese Problem’ has been magnified out of its true proportion, largely because of the physical characteristics of the people,” and that Japanese Americans ”should be handled on the basis of the individual, regardless of citizenship, and not on a racial basis.”50 When the Justices questioned Solicitor General Charles Fahy about DeWitt’s report and any contradicting assessments, Fahy replied that the report’s facts justified the mass exclusion and incarceration and that “no person in any responsible position has ever taken a contrary position.”51 This was a direct misrepresentation to the Court—ignoring the unanimous, and then still hidden, ONI, FBI, and FCC assessments and the internal Justice Department lawyers’ protests. In 2011, through a rare “Confession of Error,” Acting Solicitor General Neal Katyal acknowledged that the Solicitor General in Korematsu and Hirabayashi had knowingly misled the Court.52
Despite purporting to undertake the “most rigid scrutiny,”53 the Korematsu majority did the opposite. It deferred fully and thereby countenanced the government’s deception. Employing a triple negative, Justice Black wrote that “we cannot reject as unfounded” the government’s claim that “disloyal members of that population . . . could not be precisely and quickly ascertained.”54 The Third Circuit in 2015 aptly characterized the Korematsu Court’s logic—its extreme passivity—as “unconditional deference” to the government.55
In 1984, after finding “manifest injustice,” U.S. District Judge Patel granted Korematsu’s coram nobispetition.56 In an effort to cleanse a judicial record infected by egregious unethical misconduct, Judge Patel vacated Korematsu’s forty-year-old conviction for resisting the military orders, effectively clearing the names of all those excluded and incarcerated.57 Judge Patel affirmed a congressional investigative commission’s finding that “race prejudice, war hysteria and a failure of political leadership”58 were the underlying causes of this manifest injustice. And she concluded that although Korematsu formally remained on the law books, it now served as a sharp lesson for judicial vigilance.59
Judge Patel’s ruling may be viewed narrowly as a belated effort to correct a badly tainted judicial record. It also may be seen more broadly as characterizing Korematsu, Hirabayashi, and Yasui as cautionary tales of grave injustice arising out of popular fears, opportunistic politicians, dissembling officials, and deferential courts. Indeed, Judge Patel cautioned against deploying national security justifications as a bar to heightened scrutiny of potentially abusive security actions. As “historical precedent,” she wrote, Korematsu “stands as a constant caution . . . that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability.”60
II. the post-9/11 era
Despite Judge Patel’s cautionary warning, the post-9/11 era has raised anew the specter of Korematsu’s principle of unconditional judicial deference.
Since 9/11, politicians have relied on the 1944 Supreme Court decision to justify sweeping ethnicity- and religion-tinged government actions, both against citizens and noncitizens. For instance, shortly after 9/11, a commissioner of the U.S. Civil Rights Commission cited the case as precedent for a possible mass internment of Arabs or Muslims in the United States.61 After the 2015 Paris terror attacks, a city mayor in Virginia cited Japanese American incarceration to justify not accepting Syrian refugees into the city.62 And as a presidential candidate, Donald Trump highlighted Japanese American exclusion as a foundation for barring present-day Muslim entry into the country.63 Influential jurists, too, have continued to embrace the opinion’s judicial passivity (even while refraining from expressly citing the case).64 Others, by contrast, have characterized Korematsu and Hirabayashi as stark cautionary tales—loaded weapons poised to inflict lasting damage on innocent people.65
Immediately after the September 11, 2001 attacks on the World Trade Center and the Pentagon, the Bush administration initiated a “war against terrorism.”66 Congress quickly passed the USA Patriot Act, significantly expanding executive national security powers.67 Congress created the Department of Homeland Security to protect the American people and institutions from both domestic and foreign terrorism.68 Soon thereafter, the Department initiated an immigrant registration and tracking program.69 The government’s security arms also advanced a range of other measures, including enhanced airport and public transportation security, expanded electronic surveillance, and intensified investigation of terror networks.70
But the breadth and intrusiveness of many security measures appeared to reflect racial and religious scapegoating.71 Civil liberties advocates warned of hidden agendas behind far-reaching antiterrorism policies. One potential agenda involved bolstering the administration’s political power by pandering to public fears in vilifying vulnerable communities.72 Another aimed to build popular support for an invasion of Iraq and control of its oil resources—motives rooted in politics and economics.73 The Center for Public Integrity identified 532 false Bush administration statements about Iraq’s supposed weapons of mass destruction and the threats posed by al Qaeda.74
The clash of security concerns and constitutional liberties also enmeshed policy makers. After 9/11, Peter Kirsanow, a controversial Bush appointee to the U.S. Civil Rights Commission, suggested that Arab Americans would be interned en masse if the United States suffered another major terror attack. Kirsanow invoked Korematsu as precedent.75 He warned that, if such an attack occurred, Arab Americans could “forget civil rights in this country.”76 The head of the U.S. House Subcommittee on Crime, Terrorism, and Homeland Security, Howard Coble, similarly faced public condemnation for implying that he supported mass ethnic internment, citing the World War II-era incarceration.77 And in 2015, retired U.S. Army General and former Commander of the NATO Allied Forces Wesley Clark called for segregating American Muslims who possessed “radicalized” antigovernment views.78 For Clark, a former Democratic presidential candidate, religious extremism posed a serious security threat.79 Clark’s call for segregation bore two hallmarks: first, it signaled that citizens and noncitizens in America could be incarcerated without charges or hearings based on likely radical beliefs rather than wrongful actions; and second, it tacitly resurrected Korematsu by implying that courts would countenance government suppression of individual rights on broadly asserted grounds of national security.
The courts, too, entered the fray—at times fully deferring to the executive branch and its largely unsubstantiated claims of national security, and at other times citing Korematsu as a reason for more closely reviewing the government’s factual claims. Early in the War on Terror, in Padilla ex rel. Newman v. Bush, U.S. District Judge Mukasey called for “deference . . . [to] the President’s determination” that an American citizen arrested on U.S. soil was an enemy combatant and, therefore, could be detained indefinitely.80 José Padilla sued to challenge the President’s detention authority and the factual basis for his terrorist designation. Judge Mukasey allowed Padilla to challenge his designation, but sharply restricted Padilla’s ability to effectively advocate on his behalf. Guided by the All Writs Act81 instead of making a purely constitutional ruling,82 Judge Mukasey gave Padilla’s counsel no authority to conduct discovery, cross-examine witnesses, or effectively rebut officials’ claims.83 In addition to limiting Padilla’s counsel’s participation, Judge Mukasey adopted the attenuated “some evidence” standard advocated by the Bush administration.84 Padilla eventually refiled his case in a different district, where he prevailed; but the Fourth Circuit reversed.85 After multiple appeals, the government foreclosed a judicial determination on the merits of Padilla’s challenge to indefinite military detention by prosecuting him in the U.S. criminal system.86
In the same timeframe, American citizen Yaser Hamdi challenged his military detention as an enemy combatant.87 The lower court characterized the Justice Department’s evidence (a declaration by Michael Mobbs, Special Adviser to the Under Secretary of Defense for Policy) as “little more than the government’s ‘say so’ regarding the validity of Hamdi’s classification” and observed that “if the Court were to accept the Mobbs Declaration as sufficient justification for detaining Hamdi . . . this Court would be acting as little more than a rubber-stamp.”88 On appeal, the government argued that “courts may not second-guess the military’s determination”;89 the government had suggested, in the court’s phrasing, that “[the military’s] determinations on this score are the first and final word.”90 The Fourth Circuit agreed and discharged the lower court’s habeas writ.91 The court denied a rehearing en banc92 but Judge Motz dissented, writing that the judiciary “must not forget the lesson of Korematsu.”93 Here, “as in Korematsu, the Executive has failed to proffer any real evidence to justify” Hamdi’s prolonged detention.94 Judge Motz quoted Justice Murphy’s Korematsu dissent, which stated that “[i]ndividuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support.”95
On further appeal to the Supreme Court, Justice O’Connor observed that during hostilities, judicial deference “serves only to condense power into a single branch of government.”96 She declared that “[w]e have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens,” and she too quoted Justice Murphy’s dissent for the proposition that “it does not infringe on the core role of the military for the courts to exercise their own time-honored and constitutionally mandated roles of reviewing and resolving” civil liberties claims.97 Justice Souter, joined by Justice Ginsburg, cited Korematsu as a cautionary illustration.98
Later in the war on terror, in Holder v. Humanitarian Law Project,99 citizens and domestic humanitarian organizations challenged as constitutionally overbroad a statute making it a federal crime to “knowingly provid[e] material support or resources to a foreign terrorist organization.”100 Chief Justice Roberts, for the majority, first declared that the possible infringement of First Amendment rights called for heightened scrutiny.101 But like the majority in Korematsu, the Court deferred. It accepted without careful review the conclusory, hearsay-laden affidavit of a State Department official.102 When the executive claims that its actions are necessary to protect national security, Chief Justice Roberts wrote, the executive “is not required to conclusively link all the pieces in the puzzle before we grant weight to its empirical conclusions.”103 As Ganesh Sitaraman and Ingrid Wuerth later noted, the majority accepted the Obama administration’s claim of necessity “without any scrutiny.”104
In dissent, Justice Breyer—joined by Justices Ginsburg and Sotomayor—acknowledged the government’s compelling interest in combating terrorism.105 But he also highlighted the majority’s failure to insist upon “specific evidence, rather than general assertion[s].”106 Courts must examine the facts on national security—“whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent; and whether the evil apprehended was one so substantial as to justify the stringent restriction.”107 The government’s “authority and expertise in these matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals.”108
Three years later, the Court in Clapper v. Amnesty International109 rejected a constitutional challenge to a section of the Foreign Intelligence Surveillance Act (FISA).110 Journalists, lawyers, and advocates who worked with foreigners outside the United States had claimed that the government improperly employed FISA—which authorizes foreign intelligence surveillance—to spy on American citizens in the United States. The Court ruled that the plaintiffs lacked threshold standing to challenge surveillance under the Act because, based on the government’s representations, foreigners were targeted, and the American claimants could not show a reasonable likelihood that their own communications were targeted.111
Edward Snowden’s subsequent leak of classified documents revealed that far more Americans than acknowledged in Clapper had been swept up in the government’s information gathering.112 Senators accused the Justice Department of key factual misstatements in legally justifying the far-reaching government surveillance.113 As First Circuit Judge Sandra Lynch noted,
One could question whether the Supreme Court’s role in providing a check to executive power had been undermined in Clapper . . . . A judiciary, without the facts or an independent means of acquiring them, stands in danger of being manipulated by the very political branches it was designed to control. That happened in Korematsu.114
All of this illuminates Justice Scalia’s 2014 prophecy that a sweeping curtailment of civil liberties could “happen again.”115 Indeed, this prediction played out in American politicians’ calls for the barring of Muslims from entering the United States.116 These calls—fueled by fears following the attacks in Paris, San Bernardino, and Orlando—coalesced in President Trump’s anti-Muslim statements117 and three ensuing executive orders.118
Terror attacks warrant security officials’ swift and rational responses in catching and prosecuting perpetrators and in taking grounded, proactive steps to prevent future violence.119 And after 9/11, the government established a multilevel system to track security threats, prosecute perpetrators, and restructure the immigration vetting system.120 But a majority of Republican voters still endorsed then-candidate Trump’s prescribed “complete and total shutdown” of Muslim entry into the United States.121 And with his reference to the Japanese American incarceration as precedent,122 nearly half of Republican voters thought that the mass racial imprisonment was a “good idea,” and more than half supported “Trump’s call to ban Muslims from entering the United States.”123
III. trump v. hawaii
Challenges to President Trump’s 2017 executive orders—colloquially described as a “travel ban” or “Muslim ban”124—raised again the threshold issue in Korematsu: will the judiciary defer to the executive branch and passively accept its national security justifications? Or will courts carefully scrutinize the government’s claims of pressing public necessity?
A. The 2017 Executive Orders
Shortly after the 2016 election, a Trump campaign surrogate cited Japanese American incarceration as precedent for sweeping Muslim exclusionary measures, including the creation of a Muslim registry. “[I]t is legal. [The President’s transition advisors] say it will hold constitutional muster,”125 he said. “We’ve done it based on race, we’ve done it based on religion,” and “[w]e did it during World War II with Japanese.”126 And, he added, the Supreme Court “upheld things as horrific as Japanese internment camps”127—directly implicating Korematsu.
The week after his inauguration, the President issued the first of three exclusion orders. Some supported the restrictive measure.128 But others condemned it. Business and religious leaders, politicians, scholars, and civil liberties groups, along with Muslim communities, called the orders discriminatory.129 Massachusetts Attorney General Maura Healey characterized the order as “akin to “tak[ing] a wrecking ball to the Statue of Liberty.”130 Individuals and states launched legal challenges. Judges issued nationwide restraining orders.131
Still, the President’s 2017 exclusion orders and politicians’ citations to the World War II-era incarceration rested on one tremulous legal leg. Although deeply discredited, Korematsu’s validation of the forced racial removal had never been overruled by the Supreme Court.132 Most importantly, the Court had not jettisoned the case’s “principle of unconditional judicial deference to the executive on national security matters.”133 Moreover, Chief Justice Rehnquist and prominent Seventh Circuit Judge Posner had earlier endorsed key aspects of Korematsu.134
In his book All the Laws but One, Chief Justice Rehnquist intimated that, in light of the government’s broad war and national security powers and control over immigration, the courts should enforce all laws, with one exception.135 They need not, and should not during hostilities, closely enforce the Constitution’s protection of civilian liberties. The political branches essentially hold a blank check on these matters at least until hostilities end.136 The former Chief Justice observed that Korematsu was correctly decided as to first generation Japanese immigrants in America.137 Without acknowledging the revelations of the coram nobis litigation or the findings of Congress’s Commission on the Wartime Relocation and Internment of Civilians,138 however, the Chief Justice’s broader pronouncements extended beyond the first generation to encompass all persons of Japanese ancestry, including American citizens. Tracking Justice Black’s broad language in Korematsu that encompassed both immigrants and citizens, Chief Justice Rehnquist wrote approvingly that “[t]he Court’s answer . . . seems satisfactory—those of Japanese descent were displaced because of fear that disloyal elements among them would aid Japan in the war.”139 Most importantly, his book’s language—including the book’s title—appeared to endorse the extremely deferential judicial approach that legally validated the entire “internment.”140
After the initiation of the Gulf War, Judge Posner maintained that “Korematsu was correctly decided,”141 highlighting the importance of judicial reticence rather than independence. Korematsu appropriately enabled courts during hostilities to say, “we’re going to defer.”142
According to observers, the events of the post-9/11 era resurrected these contested aspects of Korematsu “with potentially profound consequences.”143
B. “Animus, Invective, and Obvious Pretext”
In response to challenges to the President’s exclusion orders,144 the Justice Department asserted that the orders were “unreviewable.”145But two district court judges and two courts of appeals disagreed. They closely scrutinized the facts and determined that the President’s noncitizen exclusion orders were not supported by genuine security concerns but rather, in the words of one judge, wholly reflected “religious animus, invective, and obvious pretext.”146
Another judge cited the assessment of forty-nine bipartisan former national security, foreign policy, and intelligence officials who had jointly declared that “‘concrete evidence’ has shown that ‘country-based bans are ineffective,’”147 and that the President’s orders “fail to advance the national security or foreign policy interests of the United States but would cause serious and multiple harms to those interests.”148 The Fourth Circuit, too, sitting en banc, refused “to ignore evidence, circumscribe [its] review, and blindly defer”149 to the President. It cited Korematsu as a cautionary warning, stating that “‘unconditional deference to a government agent’s invocation of “emergency” . . . has a lamentable place in our history,’ . . . and is incompatible with our duty to evaluate the evidence before us.”150
C. “How Is this Different than Korematsu?”
At the Supreme Court oral argument in Trump v. Hawaii, U.S. Solicitor General Francisco enlivened Justice Jackson’s warning in Korematsu that the case’s principle of extreme judicial deference would lie about like a “loaded weapon.” In urging the Court to uphold the “travel ban,” he declined to argue that factual realities showed that certain noncitizens posed an impending security danger or that there was a compelling need for sweeping action targeting the members of a specific religion. Rather, he effectively urged the Court to ignore the evidence, asserting that the President had brought to the courts a plausible claim of urgent need based on an “extensive worldwide” interagency review and that this should be enough for a deferential Court.151
The Solicitor General mustered that argument for judicial passivity as a strategic move to end-run disclosure of the truth—whether the government possessed a bona fide security justification set forth in its undisclosed 2017 Homeland Security report. Because of the elected branches’ immigration, foreign policy, and national security powers, Francisco asserted, “there is a very strong presumption that what is being set out there [in the proclamation] is the truth.”152 According to Francisco, the Court should almost always accept the President’s word, even without substantial evidence of impending security threats.
When Justice Sotomayor probed, Francisco acknowledged that the government had kept the Homeland Security report under wraps. The government refused to disclose its justifying report to either litigants or the courts.153 In essence, Solicitor General Francisco implored the Court, just trust us.
But the undisclosed report was apparently a mere seventeen pages154—hardly reflective of extensive worldwide security analysis. In the companion case IRAP v. Trump, Judge Chuang of the District of Maryland had voiced strong skepticism about the report. It had been prepared after-the-fact to justify the policy prescriptions. And an earlier Homeland Security report found little security benefit from the kind of exclusionary measures embodied in the executive orders.155 Moreover, the plaintiffs maintained that the report’s contents had been contested within the Department and had contradicted statements in the proclamation—hence the government’s unwillingness to open the report to scrutiny.156 The government’s attorney called for the court to deferentially accept the unproven facts recited in the presidential order and the undisclosed report. Judge Chuang declined, instead challenging the attorney: “How is this different than Korematsu?”157
D. “Blindly Accepting the Government’s Misguided Invitation to Sanction a Discriminatory Policy”
The Supreme Court’s five-member majority in Trump v. Hawaii,158 led by Chief Justice Roberts, effectively upheld the President’s third order, dissolving a nationwide preliminary injunction. The majority first determined that the order did not exceed “any textual [statutory] limit on the President’s authority.”159 The Court then concluded that the order did not violate the Constitution’s Establishment Clause barring religious discrimination. The exclusion order was facially neutral.160 And even if the Court examined the President’s intent, the order would survive because it was “expressly premised on legitimate [national security] purposes.”161 The Court would not “substitute [its] own assessment for the Executive’s predictive judgments on such matters, all of which ‘are delicate, complex, and involve large elements of prophecy.’”162
Justice Sotomayor’s vociferous dissent called out the majority’s choice to “ignor[e] the facts, misconstru[e] our legal precedent, and turn a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens.”163 Highlighting the damage to Muslim communities, she detailed numerous examples of the Administration’s anti-Muslim animus, characterizing the executive orders as religious animosity “masquerad[ing] behind a facade of national-security concerns.”164
Given the paucity of evidence supporting the “superficial claim of national security,” Justice Sotomayor characterized the Trump majority’s “rational basis” review as blindly deferential, paralleling the Korematsu majority’s closed-eyed approach.165 She echoed Judge Chuang’s earlier assessment that in both Korematsu and Trump, the government went to great lengths to shield its key security report from view.166 The government was unwilling to reveal its own intelligence agencies’ views of the security concerns.167 In ignoring the President’s repeated anti-Muslim statements, Justice Sotomayor continued, the majority empowered the President to hide behind an internal review process that the government refused to disclose to the public.168 By “blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu.”169
Justice Sotomayor also underscored Trump’s “harm to our constitutional fabric” in redeploying Korematsu’s logic170—individuals “left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support.”171She concluded by highlighting the imperative of judicial independence for a checks-and-balances democracy through careful judicial scrutiny: “Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments.”172 The constitutional scheme commands courts to act as guardians of precious liberties when fears and prejudices of the moment overrun Congress and the President—what the judiciary failed to do in Korematsu.173
Reacting to Justice Sotomayor’s linkage of Trump to Korematsu, Chief Justice Roberts closed the majority opinion with a passage that, although significant, reads like an afterthought. While stopping short of explicitly overruling Korematsu, Chief Justice Roberts observed:
The dissent’s reference to Korematsu . . . affords this Court the opportunity to make express what is already obvious: 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.”174
Justice Sotomayor agreed that “this formal repudiation of a shameful precedent is laudable and long overdue.”175 The Court’s belated rejection of the forced racial removal was important for formerly incarcerated Japanese Americans.
But the Court’s renunciation of Korematsu was crucially—and misleadingly—limited. It only reached what Chief Justice Roberts described as Korematsu’s validation of the “forcible relocation of U.S. citizens to concentration camps solely and explicitly on the basis of race.”176 Of course, that was not what was at play in Trump—hence the majority opinion’s statement that “Korematsu has nothing to do with” Trump, finding it “wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.”177
In distinguishing Trump from Korematsu, however, Chief Justice Roberts’s description badly mischaracterized the 1944 decision. First, similar to Trump’s religion-neutral executive order, the exclusion order in Korematsu was race-neutral.178 Contrary to Chief Justice Roberts’s phrasing, the Korematsu majority did not address government action taken “explicitly on the basis of race.”179 Second, the forced removal, like Trump’s exclusion orders, targeted foreign nationals, too.180 Korematsu was not only about abuse of “U.S. citizens.”181 Third, the Korematsu majority did not limit its ruling to confinement in “concentration camps.”182 It more broadly validated the mass racial exclusion from designated areas—incorporating the earlier Hirabayashi and Yasui decisions approving the less intrusive, though still restrictive, racial curfew—thus, like Trump, addressing blanket restriction and exclusion.183 Finally, as in Trump, Korematsu expressly justified the exclusionary executive order not on impermissible racial or religious grounds but on a claim of national security—albeit unsubstantiated. Contrary to Chief Justice Roberts’s description, it did not purport to approve government action undertaken “solely . . . on the basis of race.”184
Only by distorting what the Korematsu Court said and did was Chief Justice Roberts able to declare “wholly inapt”185 the likening of key aspects of Korematsu to Trump, and to thereby reject Korematsu while upholding the entry ban on those from Muslim-majority countries.
Most significantly, the Trump majority did not extend its repudiation to the most dangerous aspect of Korematsu—its unconditional deference to the executive branch. Instead, Trump reinscribed this “logic”186 by expressly embracing extreme judicial passivity in the foreign policy and immigration settings and validating the President’s proclamation “on a barren invocation of national security.”187As Anil Kalhan observed, the majority “engaged in a cheap parlor trick: purporting to ‘overrule’ a narrow, distorted version of Korematsu while simultaneously embracing and replicating that decision’s actual logic.”188Justice Sotomayor thus characterized the limited “overruling” as the Court “merely replac[ing] one ‘gravely wrong’ decision with another.”189
Before Trump, Korematsu had been discredited and judges felt uncomfortable citing it while at times nevertheless employing its minimalist judicial approach.190 Humanitarian Law Project is illustrative.191There, the majority—led by Chief Justice Roberts—first acknowledged that heightened scrutiny was appropriate given the citizens groups’ First Amendment claims.192 Yet it fully deferred to the executive branch and its empty factual proffering on national security193 without citing Korematsu, despite its resonance.
In national security cases after June 2018, judges now possess a citation to bolster an exceedingly deferential posture without having to draw, at least directly, upon Korematsu. What could not be comfortably cited earlier can be openly cited now—as Trump v. Hawaii. And this transition makes it far easier for courts in future cases to blindly defer to the President and accept largely unsubstantiated or even manufactured claims of national security as justification for curtailing fundamental liberties.
For this reason, immigration law scholar Hiroshi Motomura trenchantly observed that narrowly “[o]verruling Korematsu the way the court did in this case reduces the overruling to symbolism that is so bare that it is deeply troubling . . . . If the majority really wanted to bury Korematsu, they would have struck down the travel ban.”194
Justice Jackson’s warning rings ever loudly. A crucial part of Korematsu survives in Trump—“blindly accepting the Government’s . . . superficial claim of national security.”195 And it stands as a reloaded weapon ready for the hands of an authority with a plausible, even if unfounded, claim of urgent need.
IV. back to the future
What does this mean moving forward, beyond validation of President Trump’s travel ban? Must courts always defer to the executive branch when reviewing national security-justified restrictions of civil liberties? Or, at least in some situations, should they closely scrutinize the executive branch’s claims of pressing public necessity?196
A. The AUMF and 2012 NDAA
Consider the potential impact of Korematsu and Trump in light of the pending 2018 congressional resolution on the Authorization for Use of Military Force (AUMF).197 This proposed resolution and its 2001 predecessor198 authorize the President to undertake wars related to the 9/11 terrorist attacks. One aspect of this power is the authority to designate persons who could be placed in indefinite military detention, particularly American citizens on U.S. soil. The 2001 AUMF was silent on this matter, although the Bush and Obama administrations199 and a lower court broadly interpreted the AUMF as providing implicit authorization.200
The National Defense Authorization Act for Fiscal Year 2012 (NDAA),201 referencing the AUMF, made this presidential authority—to detain indefinitely—explicit as to citizens and noncitizens who “substantially supported al-Qaeda, the Taliban, or associated forces . . . engaged in hostilities against the United States,” including persons committing a “belligerent act” in aid of such an enemy.202 Because the NDAA did not define its key terms, American journalists and human rights organizations challenged the Act’s potentially overbroad reach and chilling impact on legitimate First Amendment activities. In Hedges v. Obama,203 the lower court cited Korematsu as a cautionary warning204 and undertook “exacting scrutiny” to determine if the security restraint on liberty was “actually necessary,”205 finding a key section of the Act to be unconstitutional. The Second Circuit, however, reversed on standing grounds without ruling on the merits.206 The NDAA still stands.
The proposed 2018 AUMF would expand the President’s capacity under the 2012 NDAA to name new “associated forces,” thereby broadening the potential pool of Americans subject to prolonged detention without charges or trial.207 Even if the new AUMF is not adopted, the prospect of indefinite military detention of citizens on American soil remains under its predecessor and the NDAA.
Buried in the debates about the scope and operation of the AUMF and NDAA lies a threshold legal process question: if a President designates and indefinitely detains a citizen as a “substantial supporter of associated forces” or an enemy belligerent—a fact-intensive determination—is a reviewing court required to fully defer to the President and his or her fact-based assessment? Or should the court carefully scrutinize that crucial assessment? After the Supreme Court’s post-9/11 Hamdi208 and Boumediene209 rulings, a detainee is entitled to challenge the appropriateness of the designation. But following Trump, it appears at first glance that any ensuing review could amount to little more than a deferential rubber stamp.
B. A Flickering Light?
Yet there remains a flickering aspirational light. The limiting language in Chief Justice Roberts’s Trump opinion leaves a potential legal and political opening. As Justice Kennedy’s quixotic concurrence emphasized, the “Court does acknowledge that in some instances, governmental action may be subject to judicial review.”210 The majority opinion’s call for overriding deference is grounded in the elected branches’ combined powers over immigration, foreign affairs (sovereign-to-sovereign dealings),211 and national security.212 The confluence of those powers in a given situation counsels a measure of judicial reticence.
But where immigration and foreign affairs are not directly involved and where the government apparently curtails fundamental liberties on national security grounds—particularly the liberties of citizens or of noncitizens with connections to the United States213—heightened judicial scrutiny might still be available as an essential aspect of the rule of law.214 As Justice Sotomayor intimated and as ordinary constitutional doctrine prescribes, in that situation, careful scrutiny is designed to protect members of disfavored groups otherwise vulnerable to the political will of intemperate majorities.215 This scrutiny is especially needed in fear-filled national security settings, as Korematsu demonstrated, and is jurisprudentially compelling in a democracy marked by checks and balances and a separation of powers.216
Moreover, even where immigration is involved, a foundation for Trump’s extreme judicial deference—the plenary power doctrine—may continue to erode.217Without saying so explicitly, the Court in Trump invoked effectively unbridled congressional (and by delegation, presidential) plenary power over immigration by citing three older cases embracing that doctrine.218 One of those cases, Harisiades v. Shaughnessy,219relied on Korematsu to deferentially uphold the national security-justified deportation of a class of legal resident aliens for past political associations.220 In dissent, Justice Douglas castigated the majority for redeploying an outdated and dangerous doctrine as the basis for unfettered deference. He noted:
This doctrine of [plenary] powers inherent in sovereignty is one both indefinite and dangerous . . . . Our [powers] are fixed and bounded by a written constitution. The expulsion of a race may be within the inherent powers of a despotism . . . . [The Constitution’s] framers were familiar with history, and wisely . . . they gave to this government no general power to banish.221
Indeed, the plenary power doctrine was rooted in nineteenth-century notions of absolute national sovereignty, untethered to contemporary human rights commitments.222 Equally significant, the doctrine emerged from racist and nativist precepts of America’s need to exclude hordes of threatening foreigners.223In Chae Chan Ping v. United States, also known as the Chinese Exclusion Case, Justice Field replicated the California constitutional convention’s narrative about an “Oriental invasion.”224 By characterizing the racial group as a “menace to our civilization,” he uplifted unreviewable government power to meet the “great danger that at no distant day . . . our country would be overrun by them unless prompt action was taken to restrict their immigration.”225
Over time, judges and scholars have leveled sharp criticism of the plenary power doctrine. They have identified the doctrine’s roots in “official racial discrimination,” calling it a “relic from a different era.”226 Moreover, Congress has prohibited immigration-visa discrimination on the basis of race, religion, and national origin. Changing legislative, judicial, and public views of human rights and racism have undercut the doctrine’s reach and standing227—a likely reason the Trump majority invoked its tenets without explicitly naming it.
Cast in this light, a realpolitik opening still exists for limiting the impact of Trump and Korematsu.228
Congress and the President need wide latitude in protecting the nation’s institutions and people—in securing airports, train stations, public arenas, and nuclear power plants; in deploying security forces where needed; in properly gathering intelligence; in vetting newcomers; and in prosecuting violent perpetrators. Courts generally should defer in these matters. But not in all situations.229
Where the government sweepingly curtails the constitutional liberties of those in or with substantial connections to the United States, judicial passivity must end. When courts act reflexively as a rubber stamp for executive security actions, they generate a “shadow side” of American law.230 They enable an executive, with impunity, to scapegoat or intimidate vulnerable groups for political advantage. This damages communities, the rule of law, and America’s moral stature—whether discriminating on the basis of race or religion,231 locking people up indefinitely as “individuals associated with” designated terror groups,232 torturing to obtain information,233 harassing journalists,234 excluding transgender people from military service,235 or gathering broad swaths of citizens’ data without authorization.236
In these situations, judicial engagement in the form of heightened scrutiny stands as an integral pillar in the edifice of a functioning constitutional democracy.237 The “core meaning of ‘civil liberties’ is freedom from coercive or otherwise intrusive governmental actions designed to secure the nation against real or, sometimes, imagined internal and external enemies.”238 Judicial protection of these liberties aims to deter or halt “actions [that] may get out of hand, creating a climate of fear, oppressing the innocent, stifling independent thought, and endangering democracy.”239
For these reasons, Korematsu continues to serve as a cautionary tale about enduring tears in the fabric of America’s democracy when courts abdicate their role as a guardian of fundamental liberties. And its coram nobis reopening spotlights the importance of jurists taking cognizance of powerful political currents in halting government excesses and thereby profoundly shaping American justice—for instance, in Brown (rejecting government racial segregation),240 Obergefell (invalidating bans on same-sex marriage),241 Hamdi (securing judicial review and due process protections for detained citizens labeled “enemy combatants”),242 and Doe v. Gonzales (rejecting FBI national security letters in place of subpoenas for sweeping information gathering from private third parties).243 These cases and others collectively advance an imperative methodology for courts, especially in national security and civil liberties controversies that do not directly implicate a mix of immigration and foreign affairs: the express repudiation of Korematsu’s “logic” of unconditional deference.244
There remains a legal opening to meet this imperative. It will entail political organizing and education that accentuates lawmaker and judicial accountability in a functioning democracy, along with sustained critical legal advocacy that uplifts heightened scrutiny as a bedrock for unmasking pretextual government abuses. A realpolitik coalescence is essential. Courts acting as guardians of precious liberties “in practice often results not from legal pronouncements alone but rather from a ragged combination of law and politics.”245 This combination likely contributed to the lower courts’ preliminary injunctions against the travel ban.246 With clear-eyed judges buttressed by vigorous advocacy and organizing,247 America’s constitutional democracy may yet rise to prevent religious and racial animosity from again masquerading behind a facade of national security.
Eric Yamamoto is the Fred T. Korematsu Professor of Law and Social Justice, University of Hawai`i at Manoa, William S. Richardson School of Law. Rachel Oyama is a member of the University of Hawai`i at Manoa, William S. Richardson School of Law, class of 2019.