Justice, SCOTUS, Supreme Court

Korematsu Is Still Good Law, And Republicans Are Going To Use It

The reality of Trumpworld is that the only Americans that matter now are white people.

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Sign that 60 million voters wold be cool with.

Sign that 60 million voters wold be cool with.

The central holding of Korematsu v. United States, the World War II Japanese internment case, is that courts should give deference to Congress and the military in times of war. The Court in Korematsu denied that racial “hostility” played a role in the government’s targeting of Japanese citizens after Pearl Harbor; instead, they reasoned that the government was merely concerned about security on the West Coast.

Korematsu has been repudiated, but never overturned. Now that Trump is trying to get his Muslim Registry off the ground, Republicans are turning to the case as precedent for their racist actions. Last night on Megyn Kelly, Trumpkin Carl Higbie went on to defend the Muslim Registry, and cited the case positively. Here’s the exchange (from New York Magazine):

HIGBIE: Yeah, and to be perfectly honest, it is legal. They say it will hold constitutional muster. I know the ACLU is gonna challenge it, but I think it’ll pass, and we’ve done it with Iran back – back a while ago. We did it during World War II with Japanese, which, you know, call it what you will, maybe —

KELLY: Come on. You’re not — you’re not proposing we go back to the days of internment camps, I hope.

HIGBIE: No, no, no. I’m not proposing that at all, Megyn, but what I am saying is we need to protect America from —

…

HIGBIE: Look, the president needs to protect America first, and if that means having people that are not protected under our Constitution have some sort of registry so we can understand, until we can identify the true threat and where it’s coming from, I support it.

Understand, the fight on the right is not about whether people should be racially profiled in the name of security. Republicans are totally cool with that. The fight is whether “internment camps” are the way to go, or if “registration” is enough. Or if they can cook up some other form of discrimination? I literally do not know what white guys talk about when they are alone, maybe they’ve perfected slave-collar technology from Star Wars and want to turn all non-white women into Twi’leks?

Thing is, there are a lot of cases you can cite if you are looking to support judicial deference to Congress. There is scholarship supporting judicial deference. When you bring up Korematsu, you’re not doing it to make a law nerd point about executive orders imposed upon the homeland during battle.

The precedent that Higbie and others like about Korematsu is its repugnant assumption that securing “America” means making the world safe for “white people.” Korematsu doesn’t give a s**t about protecting Japanese-Americans from potential attacks on the homeland. We didn’t intern citizens of Japanese descent because we thought THEY’D BE SAFER THERE. We did it because Congress thought white people would be safer with Japanese-Americans somewhere else. And the Court in Korematsu said: yeah, well, whatever Congress thinks is best for white people, is best.

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That’s the same logic Trump and his racist supporters are using to justify the Muslim Registry. When Higbie says “protect America first,” he’s not talking about all of us Americans. He’s not even pretending to. He’s talking about white Americans, and he’s saying that if Muslims have to suffer in order to protect white people, Korematsu says that’s okay.

The reality of Trumpworld is that the only Americans that matter now are white people… AND THERE’S PRECEDENT FOR THAT. Korematsu is “back” because it never really went away. America has always allowed her white people to think that this country exists for their benefit. The white people who voted for Trump, they think they’re letting minorities stay here. They act like minorities are squatting on America’s couch.

Korematsu is still good law, because 65% of white men and 53% of white women agree with its principle that America means white people… and that the government can do whatever it likes to non-white people in order to keep it that way.

Trump Supporter Cites Japanese Internment Camps As ‘Precedent’ for Muslim Registry [New York Magazine]

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Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. Unlike weak-ass Democrats, he will resist.

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