Symposium: Trump v. Hawaii — Korematsu’s ghost and national-security masquerades

Harold Hongju Koh, formerly legal adviser to the U.S. State Department, is Sterling Professor of International Law and Co-Director of the Rule of Law Clinic at Yale Law School, which submitted an amicus brief on behalf of 52 former national security officials in support of respondents in Trump v. Hawaii. The opinions expressed here do not necessarily reflect the views of his clients.

Some Supreme Court statements can only be understood as dissembling or self-deception. The most recent, startling example is Chief Justice John Roberts’ pronouncement in his 5-4 majority opinion in Trump v. Hawaii that “Korematsu has nothing to do with this case.”

Really? As Justice Sonia Sotomayor’s trenchant dissent chronicled, only a credulous majority could convince itself of that claim in light of the history we have all just lived through. As in the infamous Korematsu v. United States, in Trump v. Hawaii, the president invoked an amorphous national-security threat to justify a sweeping discriminatory policy that significantly limited the freedom of a particular group. In both cases, the government invoked a grossly overbroad group stereotype that presumed that membership in that group, standing alone, signaled a potential hidden desire of every group member to harm the United States. Donald Trump said, “Islam hates us. … And we can’t allow people coming into this country who have this hatred of the United States.” Far from rejecting the parallel to Korematsu, Trump in a December 2015 television interview justified his call for a “total and complete shutdown of Muslims entering the United States” by claiming that President Franklin D. Roosevelt “did the same thing” by interning Japanese Americans during World War II. In Trump, Roberts finally conceded nearly 75 years later that the court’s Korematsu decision upholding the Japanese internment “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.’” Yet remarkably, in the same breath, he called it “wholly inapt to liken that morally repugnant order to” Trump’s travel ban.

In fact, the wholly apt resemblance to Korematsu should have been enough to invalidate the travel ban. The majority claimed that what began life as a Muslim ban had evolved into “a facially neutral policy denying certain foreign nationals the privilege of admission.” But as Sotomayor’s dissent clarified — citing chapter and verse from Trump’s Twitter logs —  “[t]he full record paints a … harrowing picture, from which a reasonable observer would readily conclude that the Proclamation was motivated by hostility and animus toward the Muslim faith.” In both cases — FDR’s Japanese internment and Trump’s travel ban — the government misstated key facts to the court. And the manifest wrong of both policies rested on the government’s insistence on judging and harming people based not on the content of their individual character, but on their membership in a supposedly dangerous group — defined by descent, nationality or religion — whose dangerousness the government never proved.

The Trump majority committed grievous errors of both fact and law. As a matter of fact, the majority claimed that there was “persuasive evidence that the entry suspension has a legitimate grounding in national security concerns.” But as the amicus brief of former national-security officials from Republican and Democratic administrations chronicled, throughout the 15 months of the travel-ban litigation, the U.S. government never offered a sworn declaration from a single executive official who was willing to describe the national-security-based need for the orders, or the process that led to their adoption. Nor did the government point to any other evidence of a national-security imperative that could remotely justify their unprecedented actions. To the contrary, the Trump officials’ own dilatory actions in the wake of Travel Ban 1.0 showed that even they never took seriously their own claims of national-security urgency.

As a matter of process, the court chose broadly to defer to an executive action that, the national-security officials’ brief demonstrated: (1) did not emerge from the considered judgment of executive officials, (2) was not a credible response to a bona fide security threat, and (3) rested on ever-shifting, rather than consistent, rationales. As a matter of law, the Trump majority applied an unjustifiably deferential standard of review. Adam Cox, Ryan Goodman and Cristina Rodriguez well described the court’s standard: “[E]ven if we know that an immigration policy was motivated by blatant official animus against a religion, the policy should be sustained so long as the government proffers some rational national security basis for it.” In the process, the court misread the pivotal statute, 8 U.S.C. § 1182(f), to “exude[] deference to the President in every clause,” a description better suited to the court’s own opinion than to the law itself. The court never plausibly explained why that law, which authorized the president to suspend entry of “immigrants or nonimmigrants,” was not modified by a subsequent statutory provision, Section 1152(a)(1)(A), that expressly prohibited nationality discrimination in the issuance of immigrant visas. Nor did the court ever acknowledge that the original bigotry that infected Travel Ban 1.0 carried over to its two successors, which — notwithstanding the government’s recitation of a subsequent “worldwide review process undertaken by multiple Cabinet officials” — were plainly designed to preserve, in dressed up form, the original ban’s group-discrimination template. As Justice Clarence Thomas himself conceded in United States v. Fordice, “[I]f a policy remains in force, without adequate justification and despite tainted roots …, it appears clear—clear enough to presume conclusively—that the [Government] has failed to disprove discriminatory intent.”

Finally, only weeks after finding that official expressions of hostility to religion by state officials toward a baker who declined to serve LGBT customers violated freedom of religion, the court treated as irrelevant to claims of official religious discrimination far more overt, repeated anti-Muslim statements from Trump and his senior advisors. In short, Sotomayor summarized, the court “blindly accept[ed] 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, [in the process] redeploying the same dangerous logic underlying Korematsu.”

In one sense, the court’s 5-4 decision was predictable, having been signaled by its willingness to stay the lower court’s preliminary injunction last December, thereby ensuring that the policy would continue for half a year before final Supreme Court decision. But in at least three respects, the court’s ruling decides less than it symbolizes. First, because the court’s ruling rested on statutory grounds, it could be reversed in the legislative arena should the Congress change hands this November. For example, following a bill proposed by Rep. Judy Chu, Democrat of California, and Sen. Chris Murphy, Democrat of Connecticut, Congress could disallow the Department of Homeland Security from using any funding to implement the travel ban, or modify the immigration law more explicitly to proscribe the executive from issuing nationality-based bans on immigration.

Second, as they have done against other Trump policies, other transnational actors will invoke what I have called “transnational legal process” to contest and limit the impact of the court’s ruling. As they did after losing the Haitian interdiction case at the Supreme Court 25 years ago, litigants will surely seek out international fora to make arguments against the travel ban based on international law. European countries will need to think hard about whether giving assistance in implementing the ban through air travel to the United States runs up against their responsibilities to respect religious freedom. Universities and corporations that prominently challenged the ban may choose technical workarounds that allow remote employment and enrollment from within countries hostile to the ban. If only the House changes hands, it could enact bills to which a narrowly divided Senate would be forced to react. And if the ban persists until 2021, a new president could undo it with the stroke of a pen.

Third, much of the lower-court rulings blocking the travel bans may still be intact. As Justice Anthony Kennedy noted in his concurrence, “the Court does acknowledge that in some instances, government action may be subject to judicial review to determine whether or not it is ‘inexplicable by anything but animus,’ … which in this case would be animosity to a religion.” The Trump court found that U.S. persons had standing to challenge the ban and that the core issues were effectively justiciable, and remanded to the lower courts so that litigation would proceed without a preliminary injunction. As Justice Stephen Breyer pointed out in his dissent, on remand, many different plaintiffs — including “lawful permanent residents, asylum seekers, refugees, students, children, and numerous others” — can now be expected to press the proclamation’s elaborate system of exemptions and waivers in an effort to test Sotomayor’s suspicion “that the Proclamation’s waiver program is nothing more than a sham.” Regardless of what the courts themselves find, a new Congress could enact legislation defining and expanding the scope of how the exemptions and waivers are to be implemented.

In the end, the travel ban represents only the most prominent Trump administration policy that, in Sotomayor’s words, “now masquerades behind a façade of national-security concerns.” After all, this is the same president who, while harshly condemning and using military force in response to Syrian President Bashar al-Assad’s use of chemical weapons against the Syrian people, remains unwilling to lift his nationality-based ban on Syrians entering the United States. This is the same president who has declared Canada to be a “national security threat,” while separating infants from their parents at the U.S.-Mexico border in the name of “national security.” And this is the same president whose administration has broadly claimed national security justifications for expelling transgender individuals from the U.S. military, imposing steel and aluminum tariffs on allies under Section 232 of the 1962 Trade Expansion Act, and now contemplating, in the name of national security, emergency action under the Defense Production Act and Section 202 of the Federal Power Act to require grid operators to make “stop-loss” purchases from failing coal power plants.

Given the Trump court’s unquestioning acceptance that national-security concerns require a travel ban, we can expect the administration soon to seek judicial validation of these other national-security masquerades. It will be up to the lower courts, which have proven almost universally hostile to the travel bans, to determine whether their job is to fortify the administration’s national-security façades or whether — as Marbury v. Madison put it — it is “the province and duty of the Judicial Department to say what the law is.”

We should not forget that Korematsu was overruled in the court of public opinion — through concerted action on many fronts — decades before the Roberts court belatedly pronounced it dead. To finally inter Korematsu’s ghost, we will all need to keep resisting these new national-security masquerades. As Justice Kennedy fretted in parting, “[a]n anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect.” Although the Trump majority declined to require that commitment here, the rest of us need not similarly surrender.