{"id":1463,"date":"2020-06-08T08:25:36","date_gmt":"2020-06-08T13:25:36","guid":{"rendered":"https:\/\/blogofnotesite.wpengine.com\/?p=1463"},"modified":"2020-06-08T08:30:38","modified_gmt":"2020-06-08T13:30:38","slug":"korematsu-covid-19-and-the-question-of-executive-deference","status":"publish","type":"post","link":"https:\/\/blog.northwesternlaw.review\/korematsu-covid-19-and-the-question-of-executive-deference\/","title":{"rendered":"Korematsu, COVID-19, and The Question of Executive Deference"},"content":{"rendered":"\n
\"Woman<\/figure>\n\n\n\n

\u201cWrong the day it was decided\u201d 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<\/a> is Korematsu v. United States<\/em><\/a>, a decision that infamously sanctioned the World War II internment of individuals of Japanese ancestry. The Court\u2019s 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<\/em> Court remain relevant in today\u2019s social and political climate, particularly in light of the COVID-19 pandemic.<\/p>\n\n\n\n

The Supreme Court\u2019s decision in Korematsu<\/em> 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\u2019s eagerness to defer to the military\u2019s 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 \u201cavail [themselves] of the calm perspective of hindsight\u201d<\/a> in challenging the detentions.<\/p>\n\n\n\n

Both society and the Court did later avail themselves of the calm perspective of hindsight, albeit seventy-five years later in the Court\u2019s case. Despite that, the rhetoric of wartime deference\u2014and the characterization of scrutiny as inappropriate Monday morning quarterbacking\u2014remains largely untouched. It is no accident that the \u201cwrong the day it was decided\u201d treatment of Korematsu<\/em> comes up in the majority opinion of Trump v. Hawaii<\/em><\/a>, a decision that validated the President\u2019s so-called \u201ctravel ban\u201d by emphasizing the deference courts owe to the executive\u2019s determinations of what would be \u201cdetrimental to the interests of the U.S.\u201d<\/p>\n\n\n\n

Indeed, the Trump v. Hawaii <\/em>majority was goaded into their repudiation of Korematsu<\/em> by Justice Sotomayor\u2019s dissent, which warned against the dangers of excessive deference to executive and military actions simply because they were accompanied by a \u201cbarren invocation of national security.\u201d<\/a> The majority in Trump v. Hawaii<\/em> appeared ready to cut against the first pillar of Korematsu<\/em>, 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\u2019s primary point. The effect is to leave little to no recourse for review of a government\u2019s wartime actions. This was not an issue for the Korematsu <\/em>court, as they considered judicial second-guessing of these actions improper, whether during or after the crisis. But with the lessons of Korematsu<\/em> to guide us, such deference should be an issue for today\u2019s citizenry.<\/p>\n\n\n\n

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 \u201cwartime President\u201d<\/a> in response to COVID-19. This label cloaks the government\u2019s actions with the same extraordinary deference against both real time and post hoc scrutiny that was afforded in Korematsu<\/em>. Whether President Trump\u2019s 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\u2014and with it, democratic authorization to maintain the present course\u2014is arguably more pressing than the verdict of any court.<\/p>\n\n\n\n

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\u2019s dissent in Korematsu<\/em><\/a>, the principle of that decision now \u201clies about like a loaded weapon, ready for the hand of any authority who can bring forward a plausible claim of an urgent need.\u201d There is no doubt that a worldwide pandemic presents an urgent need; the only question is where the weapon might be aimed.<\/p>\n","protected":false},"excerpt":{"rendered":"

\u201cWrong the day it was decided\u201d 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\u2019s 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…<\/p>\n

Read More Read More<\/span><\/a><\/p>\n","protected":false},"author":129,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[48,134,122],"tags":[47,273,274,111,213],"class_list":["post-1463","post","type-post","status-publish","format-standard","hentry","category-1l-blog-contest","category-constitutional-issues","category-covid-19","tag-1l-blog","tag-1l-blog-contest","tag-1l-contest","tag-covid-19","tag-korematsu"],"_links":{"self":[{"href":"https:\/\/blog.northwesternlaw.review\/wp-json\/wp\/v2\/posts\/1463","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blog.northwesternlaw.review\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blog.northwesternlaw.review\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blog.northwesternlaw.review\/wp-json\/wp\/v2\/users\/129"}],"replies":[{"embeddable":true,"href":"https:\/\/blog.northwesternlaw.review\/wp-json\/wp\/v2\/comments?post=1463"}],"version-history":[{"count":0,"href":"https:\/\/blog.northwesternlaw.review\/wp-json\/wp\/v2\/posts\/1463\/revisions"}],"wp:attachment":[{"href":"https:\/\/blog.northwesternlaw.review\/wp-json\/wp\/v2\/media?parent=1463"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blog.northwesternlaw.review\/wp-json\/wp\/v2\/categories?post=1463"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blog.northwesternlaw.review\/wp-json\/wp\/v2\/tags?post=1463"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}