Korematsu vs. the Supreme Court’s Travel Ban Decision.

Are The Comparisons Fair?

On June 26th the Supreme Court handed down a 5–4 decision in the case of Trump v. Hawaii, aka the travel ban case. The court ruled strongly in favor of Trump’s travel ban.

Many began to quickly compare the case to Korematsu v. United States, the notorious Supreme Court decision upholding the internment of Japanese Americans in World War II. One of many examples is Democratic Representative Ted Lieu:

One reason this is interesting is because, to its credit, Trump v. Hawaii for the first time expressly overruled and repudiated the Korematsu decision, saying:

“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.”

Amazingly, until this decision, Korematsu had never been overruled by the Supreme Court, thereby technically making it what lawyers call “good law.” Even so, it was widely regarded as a pariah of Supreme Court cases and taught in law schools as a bad example.

So are the comparisons to Korematsu fair? Among those strongly making the comparison were Justices Sotomayor and Ginsburg, in their dissent in Trump v. Hawaii. The dissent concludes the court majority “redeploys the same dangerous logic underlying Korematsu.” The dangerous similar logic cited by the dissent includes:

Justices Sotomayor and Ginsburg conclude:

“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.”

Strong words, and the court majority clearly did not like them. Justice Roberts’ majority decision complains that the dissent misused Korematsu for “rhetorical advantage,” declaring “Korematsu has nothing to do with this case.” Justice Roberts then proceeds to describe how Korematsu was different from the travel ban:

“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.”

On the face of it, that is true. Placing U.S. citizens in concentration camps is not nearly the same as denying foreigners the privilege of entry into the United States. I agree.

However, this is a classic straw man argument. The dissent did not argue the effects were as harsh, but rather that the logic supporting the travel ban was similar. The dissent laid out the specific similarities, and the distinction drawn by the majority decision did not address the dissent’s specifics at all. Stating that Korematsu’s circumstances are different in some way does not rebut the ways in which it is similar as stated by the dissent.

It should be noted FDR’s infamous Executive Order 9066 authoring the Japanese internments was as “facially neutral” (perhaps more so) than Trump’s travel ban. There is not a single reference in it, or even allusion, to Japanese or Japanese Americans. EO 9066 only states “the appropriate Military Commander” may determine areas, “from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in , or leave.

Some of the other arguments used by the court majority also have analogs to the FDR internments. For example, the court majority defends the travel ban on grounds it does not apply to all Muslims or even all Muslim nations. The same is true for the Japanese internment which did not apply to Japanese Americans residing in Hawaii (where so many resided that locking them all up would have destroyed the territory’s economy) or the comparatively few Japanese Americans living outside of the West Coast of the United States.

The Korematsu decision objected to the term “concentration camps” in the same way Justice Roberts objected to the comparison of his reasoning to Korematsu. The Court in Korematsu said “we deem it unjustifiable to call them concentration camps, with all the ugly connotations that term implies.” It was an ugly term, and the Court in Korematsu didn’t like it for its lack of what we today would call lack of “political correctness.” However, the term was accurate. In Trump v. Hawaii, the Court majority similar did not like the ugly comparison of its logic to that of Korematsu. Yet the comparison to that logic is also accurate, no matter how politically incorrect Justice Roberts complains about it.

In this case, the “rhetorical advantage” Justice Roberts complains of, is the truth. The comparison to Korematsu is valid for the limited purpose the dissent employed. Locking American citizens in concentration camps is not the same as denying non-citizens the privilege of entering this country. However, the point of the dissent is that the logic supporting both acts is dangerously similar, and that point is valid.

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Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80

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