|Manzanar Cemetery Monument|
The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission. The entry suspension is an act that is well within executive authority and could have been taken by any other President -- the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation.
The dissent's reference to Korematsu, however, 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." 323 U.S., at 248, 65 S. Ct. 193 (Jackson, J., dissenting).
Like Justice Sotomayor, some commentators have argued that the majority essentially makes the same mistake as in Korematsu, uncritically accepting the government's contention that a racist policy was justified because of the deference due the Executive branch with respect to national security matters.
For instance, Joel Fishkin contends on Balkinization that the majority errs in upholding the travel ban because it is facially neutral whereas the Korematsu exclusion order was facially race-based. As Fishkin notes, "The problem with Korematsu was not that it slipped and failed to cloak its racism in the garb of a nominally facially neutral order, focused on nations rather than ethnicities." Obviously, this is true, but the point of the majority decision is not that religious bias necessarily played no role in the adoption of the travel ban, but that there was sufficient reason to believe that the ban was based on a legitimate motive. Thus, the majority explained that it would "uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds."
If the presence of religious bias were all that mattered, then given Trump's numerous bigoted statements, the Administration would have its hands tied, and could not adopt a policy that was clearly in the interest of national security. What matters therefore is not whether the policy was adopted for a bad reason but whether it was adopted for a good reason. The former does not negate the latter.
The majority noted that the countries covered by the travel ban were purportedly selected by determining whether they had developed minimum standards for confirming the identity of individuals seeking entry into the United States and determining whether they posed a national security threat. The majority-Muslim countries singled out had all been previously identified by Congress or a prior administration as posing security risks. On its face, the question of whether a country has adequate policies allowing the U.S. to vet would-be visitors from that country is a legitimate basis for denying someone entry to the U.S. In Korematsu, by contrast, the Supreme Court upheld a policy that assumed someone was potentially disloyal to the U.S. and therefore a security risk based solely on that individual's Japanese ancestry. You might reasonably disagree with whether the Trump administration sufficiently showed that it adopted the travel ban for legitimate reasons. But the Court unquestionably has not signed off on a facially discriminatory policy on the President's say-so as it did in Korematsu.
President Trump, to be sure, is not entitled to a pass for the abhorrent things he has said about Muslims. Recognizing as much, Justice Kennedy observed in his concurrence that, even if the actions of a government official are not subject to judicial review, the official is "not free to disregard the Constitution and the rights it proclaims and protects" and that "the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise." Is this merely wishful thinking when it comes to President Trump? Perhaps, but even if these words are lost on Trump, Justice Kennedy's respectful and hopeful approach to a difficult issue should give pause to those who would draw hyperbolic and inflammatory comparisons to racist policies of the past. Such arguments are likely to do little to advance the debate.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.