The Supreme Court’s travel ban ruling — replacing, not overruling Korematsu

In the 5-4 Trump v. Hawaii decision, the U.S. Supreme Court upheld the last iteration of the administration’s travel ban, Proclamation No. 9645. Writing for the majority, Chief Justice Roberts reversed the lower court’s’ rulings on statutory grounds, stating, “The Proclamation is squarely within the scope of presidential authority under the INA [Immigration and Nationality Act].”

Chief Justice Roberts also explained why the proclamation was constitutional under the Establishment Clause of the First Amendment, writing, “The Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices. The text says nothing about religion.”

{mosads}Both the statutory and constitutional holdings of the majority yielded significant deference to the national security justification for the travel ban put forth by the administration.

In doing so, Trump v. Hawaii surprisingly also overturned Korematsu v. United States, the court’s infamous ruling upholding the internment of Japanese descendants during World War II based on evidence that the government presented as necessitating internment in the name of national security.    

The winding path the travel ban took to the Supreme Court is important context for examining the administration’s national security justification relied on by the court. During the 2016 presidential election, then-candidate Trump repeatedly made disparaging remarks about Islam and Muslims, often referring to keeping them out of the country.

One week after taking office, President Trump signed an executive order (travel ban 1.0) that, among other things, banned the entry of nationals from seven Muslim-majority countries.

Confusion and litigation ensued, and an internal Department of Homeland Security report commenting on travel ban 1.0 found that “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity.”

Slightly more than one month later, the administration issued a revised second travel ban on March 6, 2017 (travel ban 2.0). Changes included explicitly stating that it did not apply to dual citizens (i.e. individual who are both U.S. citizens and citizens of one of the listed banned countries) and lawful permanent residents. The new executive order also explicitly presented travel ban 2.0 as evidence-based.   

On September 24, 2017, the same day travel ban 2.0 was set to expire, the administration issued a proclamation creating the ban’s third iteration (travel ban 3.0). The president presented the Proclamation as a response to a classified July 2017 government report described as a “worldwide review” of countries’ security vetting systems.

The opening words of the April 25th oral argument in Trump v. Hawaii by General Noel J. Francisco, arguing on behalf of the government, cited this still-classified report: “After a worldwide multi-agency review, the president’s acting Homeland Security Secretary recommended that he adopt entry restrictions on countries that failed to provide the minimum baseline of information needed to vet their nationals.”

Francisco referenced the report multiple times during oral argument, one time prompting the following response from Justice Sotomayor:

General, the problem is that I don’t see that that material was reviewed by the judges below, by the Ninth Circuit or the Fourth Circuit judges. I thought that the government had kept confidential and refused to share, either with the litigants or the courts, exactly what was done, how, what the evaluation and how it was applied to all those countries in the world.

Francisco responded to Justice Sotomayor, “I think that under the duty of regularity or good faith, or whatever you want to call it, that one branch of the government owes to another coequal branch of the government, there is a very strong presumption that what is being set out there is the truth.”

The Court in Trump v. Hawaii ultimately extended this good faith presumption of truth to accept the executive’s contention that, despite evidence suggesting the travel ban is a discriminatory policy motivated by animosity, the government ordered the ban in the name of national security. The court also extended this presumption for the Japanese War Crimes cases culminating with Korematsu, and that choice took almost 75 years to repudiate.    

Amongst the about eighty amicus briefs filed in Trump v Hawaii, the pair relevant to this history are the briefs authored by the Japanese American Citizens League and co-authored by the children of Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui. Justice Sotomayor relied on these briefs in her dissenting opinion to question whether upholding the travel ban while overturning Korematsu was actually a victory.

Korematsu, Hirabayashi, and Yasui were Americans of Japanese descent who defied orders of curfew and/or removal for internment after then-President Franklin D. Roosevelt issued Executive Order 9066 following the attack on Pearl Harbor. Congress then passed legislation making it a federal crime to defy of any restrictions or orders under the Executive Order. These actions paved the way for Lieutenant General John L. DeWitt to issue a series of proclamations the led to the mass removal and incarceration of approximately 110,000 people of Japanese descent, most of them American citizens.

The findings in General DeWitt’s final report that justified the Japanese internment included the following:

Intelligence services records reflected the existence of hundreds of Japanes eorganizations… actively engaged in advancing Japanese war aims….The continued presence of a large, unassimilated, tightly knit and racial group, bound to an enemy nation by strong ties of race, culture, custom and religion along a frontier vulnerable to attack constituted a menace which had to be dealt with.

The Supreme Court majority opinion in Korematsu accepted these and other findings put forth by the government as accurate national security intelligence, stating that it could not reject the military’s judgment as unfounded. In other words, the Court extended a carte blanche good faith presumption of truth, yielding total deference.  

As Justice Sotomayor details in her dissent in Trump v. Hawaii, “our Nation has done much to leave [Korematsu’s] sordid legacy behind.” Justice Sotomayor cites in her opinion the Congressional acts of 1971 and 1988 to undo the Korematsu decision.

There was also 2011, when then-acting Solicitor General confessed error in the Japanese War Crimes cases. Confessions of error is a legal practice where the United States Solicitor General admits that the Court ruling in the government’s favor was a mistake.

In a Fordham Law Review article, Neal Katyal, who was that acting Solicitor General in 2011, and the counsel of record in Trump v. Hawaii, recounts how there was enough evidence to counter the government’s claim of mandating the internment of people of Japanese descent in the name of national security.

Justice Sotomayor’s concluding remarks in her dissent in Trump v. Hawaii rightfully shun the characterization that the majority “seized the moment” to overrule Korematsu: “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 and merely replaces one ‘gravely wrong’ decision with another.”

Anita Sinha is an assistant professor of law and the director of International Human Rights Law Clinic at American University, Washington College of Law.