There are a handful of old Supreme Court cases —the pro-slavery Dred Scott case, the pro-segregation decision in Plessy v. Fergusson, the anti-worker decision in Lochner v. New York — which are considered so odious that no lawyer should ever cite them except to compare their opponent’s argument to the discredited reasoning in that case. Korematsu v. United States, which upheld the World War II era decision to round up Japanese-Americans and put them in camps, is one of those decisions.
So when a federal appellate judge compared the Trump administration’s defense of its Muslim ban to Korematsu on Monday, that was a pretty good sign that the ban is in trouble.
Korematsu reared its head in response to Acting Solicitor General Jeffrey Wall’s argument that courts cannot dig into Trump’s true motives for issuing the Muslim ban — or at least, that they can’t dig into Trump’s many statements as a political candidate — and must largely accept as fact that Trump implemented the ban for the non-discriminatory, national security reasons stated in the order.
As a candidate, Trump repeatedly promised to ban Muslims from entering the United States if elected president. He later suggested that he would frame the ban as a prohibition on people from Muslim-majority nations entering the country, rather than as a direct ban on Muslims, to avoid the legal issues that arise from a direct ban. “People were so upset when I used the word ‘Muslim,’” Trump said, so he shifted his rhetoric to talk about “territory instead of Muslim.”
Initially, Trump fulfilled this campaign promise by issuing a broad order banning travel by nationals of seven Muslim-majority nations, although he later watered down the original order and reduced the number of impacted nations to six after his first order ran into trouble in the courts.
The new order, at least on its face, claims to be an attempt to advance national security and not an actual Muslim ban. According to Wall, the courts have very little authority to look past the order’s explicit language to examine whether Trump really had a more nefarious motive when he signed his executive orders — even if Trump repeatedly bragged about that motive.
Wall bases this claim on the Supreme Court’s decision in Kleindienst v. Mandel, which held that, when a foreign national is excluded from this country “on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.”
One of the major problems with this argument, however, is that the Court effectively limited Mandel in a 2015 case called Kerry v. Din. Though there was no majority opinion in Din, the Court’s all-important swing vote, Justice Anthony Kennedy, wrote that courts may look into an executive branch official’s true motives when there is “an affirmative showing of bad faith” on the part of that official.
On Monday, Korematsu came up after Judge Richard Paez, a Clinton appointee, noted that the Trump administration’s interpretation of Mandel and Din would have also shielded the executive order providing for Japanese internment.
At the time of this order, the Justice Department admitted more than half-a-century later, the government knew that only “a small percentage of Japanese Americans posed a potential security threat, and that the most dangerous were already known or in custody.” This was after a federal court determined that there was “substantial support in the record that the government deliberately omitted relevant information and provided misleading information in papers before the court.”
The government, in other words, acted in bad faith. It claimed to have a valid national security reason for detaining thousands of innocent people of Japanese descent. But it knew better. And it outright misled the courts.
The similarities between this history and Trump’s justifications for his Muslim ban were not lost on Judge Paez. “Would the Korematsu executive order pass muster under your test today?” Paez asked, while citing arguments raised in an amicus brief filed by the Fred T. Korematsu Center for Law and Equality. “There was no reference to Japanese in that executive order, and look what happened.”
In response, Wall pleaded ignorance — “I’m not familiar with all the ins and outs of that executive order.”