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Trump v. Hawaii Is Korematsu All Over Again

Spring 2019, Volume 29:2 - George Mason Civil Rights Law Journal
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In Trump v. Hawaii, the Supreme Court upheld the third iteration of President Trump’s travel ban. The presidential proclamation banned entry of aliens from a number of Muslim-majority countries. Chief Justice Roberts railed against Justice Sotomayor’s dissent that compared the travel ban decision to Korematsu v. United States. Korematsu upheld a World War II order excluding Japanese Americans from the western United States. In response to the dissent, Chief Justice Roberts claimed that “. . . Korematsu has nothing to do with this case. 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 the language and reasoning of the two decisions are eerily similar. Korematsu did not address the issue of detention in “concentration camps”; it addressed whether “exclusion” provisions of executive orders were constitutional. On the contrary, the real issue in both cases was the constitutionality of means to sort out the “bad actors” from the larger group. In Korematsu, the larger group was all persons of Japanese descent in the western United States, with the “bad actors” being the disloyal ones. In Trump, the larger group was citizens of only eight countries, with the “bad actors” being possible terrorists within that population. In both cases, the Supreme Court abandoned judicial review over alleged infringement of constitutional rights asserted by American citizens arising from screening procedures. Trump v. Hawaii is Korematsu all over again.

Read the article here.

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