Korematsu, COVID-19, and The Question of Executive Deference

Korematsu, COVID-19, and The Question of Executive Deference

Woman with pink mask over her face looking to the right.

“Wrong the day it was decided” is a judgment that the Supreme Court reserves for overturning its most egregious prior decisions. One of the cases that most recently received that declaration is Korematsu v. United States, a decision that infamously sanctioned the World War II internment of individuals of Japanese ancestry. The Court’s repudiation of that decision, equal parts laudable and belated, offers hope that the logic of this decision is a relic of the past, but such hope may turn out to be false comfort. The justifications used by the Korematsu Court remain relevant in today’s social and political climate, particularly in light of the COVID-19 pandemic.

The Supreme Court’s decision in Korematsu rests on two primary pillars. The first, and most troubling, is an underlying thread of racism: an inherent suspicion of individuals, including U.S. citizens, who share a certain ancestry, notwithstanding the fact that the court disclaims this as a rationale. The second is the Court’s eagerness to defer to the military’s judgment on the necessity of internment, regardless of how opaque those justifications might be. On the latter point, the Court provided a double measure of insulation. First, it held that the actions were justified at the time by the urgency of suppressing an alleged Japanese insurrection. Second, in a coda, it cautioned those who would “avail [themselves] of the calm perspective of hindsight” in challenging the detentions.

Both society and the Court did later avail themselves of the calm perspective of hindsight, albeit seventy-five years later in the Court’s case. Despite that, the rhetoric of wartime deference—and the characterization of scrutiny as inappropriate Monday morning quarterbacking—remains largely untouched. It is no accident that the “wrong the day it was decided” treatment of Korematsu comes up in the majority opinion of Trump v. Hawaii, a decision that validated the President’s so-called “travel ban” by emphasizing the deference courts owe to the executive’s determinations of what would be “detrimental to the interests of the U.S.”

Indeed, the Trump v. Hawaii majority was goaded into their repudiation of Korematsu by Justice Sotomayor’s dissent, which warned against the dangers of excessive deference to executive and military actions simply because they were accompanied by a “barren invocation of national security.” The majority in Trump v. Hawaii appeared ready to cut against the first pillar of Korematsu, namely, the bigoted viewpoint that the government has authority to detain U.S. citizens based solely on their national ancestry. But they left the second pillar, a blind acceptance of broad security claims, relatively untouched, and in so doing appeared to miss Justice Sotomayor’s primary point. The effect is to leave little to no recourse for review of a government’s wartime actions. This was not an issue for the Korematsu court, as they considered judicial second-guessing of these actions improper, whether during or after the crisis. But with the lessons of Korematsu to guide us, such deference should be an issue for today’s citizenry.

The rhetoric of wartime deference has also inculcated itself into popular discourse. It has hung over debates on Vietnam, Iraq, Afghanistan, and more. It is no accident that President Trump has claimed the mantle of “wartime President” in response to COVID-19. This label cloaks the government’s actions with the same extraordinary deference against both real time and post hoc scrutiny that was afforded in Korematsu. Whether President Trump’s claim is intended as a bulwark against judicial review, or is meant to invoke similar safeguards against popular review, may be beside the point during an election year, when the verdict of the voters—and with it, democratic authorization to maintain the present course—is arguably more pressing than the verdict of any court.

It is beyond the space afforded here to describe the discriminatory or otherwise constitutionally problematic actions that could arise from the COVID-19 crisis, but they are not difficult to imagine. To quote Justice Jackson’s dissent in Korematsu, the principle of that decision now “lies about like a loaded weapon, ready for the hand of any authority who can bring forward a plausible claim of an urgent need.” There is no doubt that a worldwide pandemic presents an urgent need; the only question is where the weapon might be aimed.

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