Ninth Circuit Goes Full 'Korematsu' On Muslim Ban Lawyer

Can we really legally distinguish the Muslim Ban from Korematsu?

Muslim ban 2Korematsu v. United States lurks behind all of the government’s arguments in defense of Donald Trump’s “Muslim Ban.”

The case is on point. The majority in Korematsu didn’t exactly find bigotry against the Japanese people was constitutional. It found that the president’s authority on national security measures was nigh unquestionable. The obvious racism and bigotry was almost incidental.

That’s essentially the government’s argument in defense of the Muslim Ban. Donald Trump can do what he wants with national security, the courts should ignore the racism and bigotry underlying the president’s executive order.

Today, Judge Richard Paez directly asked acting solicitor general Jeffrey Wall about the connection, during oral arguments before the Ninth Circuit. From the National Law Journal:

In one powerful exchange Monday, Judge Paez referenced an amicus brief from the Fred T. Korematsu Center, asking Wall whether the internment of Japanese citizens during World War II would be constitutional under the government’s legal analysis.

“This case is not Korematsu and if it were I would not be standing here and the United States would not be defending it,” Wall said.

“There was no reference to Japanese in that executive order and look what happened,” Paez responded.

[Plaintiffs’ counsel Neal] Katyal picked up on the Korematsu reference. “The government has not engaged in mass dragnet exclusion in 50 years. This is something new and unusual.”

The “United States would not be defending it” is a false statement, on its face. The United States was, in fact, the defendant in Fred Korematsu’s lawsuit. Wall is literally wrong about what the United States will and won’t defend.

Given that, I can only assume that Wall is mistaken about what he would or wouldn’t stand for. The Muslim Ban is the Korematsu of our time, and there is Jeff Wall, running around the country defending it.

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What’s interesting is that Wall and other Muslim Ban defenders have offered nothing to actually distinguish between the powers Franklin Roosevelt claimed in Korematsu, and the powers the Donald Trump claims now.

Once you strip away the bad press Korematsu has rightly received, its central holding is that in times of war, the president can be racist towards groups of people in the name of national security. As clear as I can tell, that’s still good law. Fred Korematsu got his conviction overturned, eventually, because Peter Irons found documents proving that the government lied about the nature of the “Japanese-American threat” posed to the country during World War II. Korematsu has never been overturned, as the Supreme Court has never again looked at the question of whether the president’s wartime powers are limited by his own straight-up bigotry.

I think it’s fair to say that the government can’t lie about how dangerous a people are. And, given this president, that’s not nothing. But if the president thinks that an entire race or religion of people are dangerous, what limits are there? Remember, the forced relocation challenged in Korematsu applied only to Japanese Americans on the West Coast. There were Japanese Americans living out east who were, arguably, not targeted by Roosevelt’s Japanese Ban. Trump saying that his Muslim Ban applies only to Muslims in a certain geographic region is not all that different from what Roosevelt did in Korematsu.

At some point, Donald Trump, Jeff Wall, or maybe John Roberts or Anthony Kennedy is going to have to explain to me how this Muslim Ban is legally different from Korematsu.

Or, in the alternative, they’re going to have to explain why Korematsu was rightly decided.

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What the 9th Circuit Is Saying About Trump’s New Travel Ban [National Law Journal]
3 Judges Weigh Trump’s Revised Travel Ban, but Keep Their Poker Faces [New York Times]


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. He will resist.