Korematsu and the Muslim Ban: The Legal Consequences of Unchecked Executive Power

In 1942, Fred Korematsu was arrested on a street corner in California. His crime was refusing to evacuate to an internment camp and comply with President Roosevelt’s Executive Order 9066. Under the executive order, over 120,000 men, women, and children of Japanese descent were forced to relocate from their homes on the coasts to remote camps inland; they had been deemed a “national security threat” after the attack on Pearl Harbor in 1941.[1] Korematsu was the first man to legally challenge the order in Korematsu v. United States. The case made its way from the Court of Appeals to the U.S. Supreme Court, which ultimately deferred to the executive order, ruling in a 6-3 landmark decision that internment was based on "military necessity."[2]

Nearly forty years later in 1981, a district court found the ruling in Korematsu v. United States unconstitutional, clearing Korematsu of his conviction. Beyond the decision’s clear violation of civil liberties, an investigation had found that pieces of key evidence presented in the case were unethically altered and fabricated. The executive branch intentionally concealed documents from government intelligence agencies stating that Japanese-Americans actually posed no military threat, justifying the internment of those with Japanese ancestry with the myth of protecting national security.[3] Despite the 1981 ruling, the Supreme Court has yet to overturn its own decision. As Fred Korematsu’s daughter Karen Korematsu reiterates: “The court not only abandoned its critical role as a ‘check’ on executive power but disregarded the fundamental freedoms guaranteed by our Constitution.”[4]

While many legal scholars have since criticized the Korematsu decision, the motive and intent behind this decision are still implemented and reiterated in recent executive orders. Last January, President Trump issued Executive Order 13769, commonly known as the “Muslim ban” or “travel ban.” The order restricted nationals from seven Muslim-majority countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen) from obtaining U.S. visas, and travelers from these countries were detained or had their visas revoked if they tried to visit the United States. Further revisions were added in Executive Order 13780, which suspended entry for nationals from six of the seven countries listed in the travel ban for 90 days, citing “a need for time to establish adequate standards to prevent infiltration by foreign terrorists.”[5] The latest revision of the order, which was issued in September as Presidential Proclamation 9645, added Venezuela, North Korea, and Chad to the list, in addition to suspending refugee applications from citizens of all the specified countries.

As Trump continues to make his immigration policies more restrictive, we must consider questions regarding immigration law in light of Korematsu v. United States. Specifically, we ought to look beyond the context of religious exclusion and examine the administration’s anti-Muslim policies through the lens used to justify the Korematsu decision. While the Ninth and Fourth Circuit Courts of Appeals have blocked the latest executive order in their rulings on Trump v. Hawaii, the case has since been sent back to the lower courts and is pending review from the Supreme Court, which will hear an oral argument by March.

The Supreme Court decision could impact thousands of Muslim-Americans, refugees, and families. The policies outlined by Trump’s executive orders are certainly discriminatory, but they also establish a legal precedent which is justified by the logic of exclusion and the ethos of fear. As we know, these factors were inextricably linked to the now widely discredited decision of Korematsu v. United States. Despite those with Japanese ancestry posing no real threat to the United States, they were still depicted as threats and detained under the false pretense of national security.

Beyond the language emphasizing the potential national security threat in both the Korematsu case and the recent executive order, both also imply that an entire group be responsible for the actions of a few. As Justice Hugo Black argued in his majority opinion in Korematsu v. United States, Korematsu’s eventual arrest and internment were justified, as the “exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group.”[6] Similarly, in Trump’s Executive Order 13780, the entirety of Section H recounts recent cases of terrorism committed by nationals of the countries included in the ban; no more than three individual cases spanning from 2013-2014 are fully described in this section.[7] The notion that a predominantly innocent group of people should bear the consequences for a few “bad seeds” within that group is not only exclusionary but also extremely dangerous, perpetuating stereotypes that can lead to heightened rates of discrimination and hate crimes.

In the upcoming decisions on the travel ban and other related anti-Muslim policies, the Judicial Branch must consider a more thorough approach in checking executive power. According to Garrett Epps of the Atlantic, courts have rarely evaluated questions of statutory power nor have they placed the administration’s claims of “national security” under strict scrutiny in the immigration context.[8] In the Ninth and Fourth Circuit Court decisions on Trump v. Hawaii, for example, the case was decided in relation to the Immigration and Nationality Act and the Religious Establishment Clause, respectively. Future evaluations of Executive Order 13780 should therefore address whether the executive has a bona fide reason for the Muslim ban. After all, the District Court’s reversal of Korematsu revealed the Roosevelt administration’s deliberate suppression of evidence to support the “military necessity” of Japanese internment; is the current administration doing the same to justify its crackdown on immigration?

With comparisons increasingly being drawn between Korematsu v. United States and recent executive orders, it is vital that we do not disregard Korematsu as simply a meaningless mistake in American legal history. The late Supreme Court Justice Antonin Scalia has even warned us of a reiteration of Korematsu as a legal precedent: “Observing that ‘in times of war, the laws fall silent,’...When challenged, the government would resort to the Supreme Court's 1944 Korematsu decision as shaky but still standing precedent for the forced removal and possible incarceration of an entire ethnic or religious group.”[9] As such, we must remember the lessons from Korematsu and apply them to Trump’s recent executive order to ensure that we learn from history, rather than repeat it.

[1] Facts and Case Summary — Korematsu v. U.S., United States Courts.

[2] Skelton, Korematsu v. United States, 323 U.S. 214 (1944).

[3] Facts and Case Summary — Korematsu v. U.S., United States Courts.

[4] Korematsu, “My father resisted Japanese internment. Trump’s travel ban is just as unfair.” Washington Post, 4 December 2017.

[5] Trump v. Hawaii, Oyez.

[6] Korematsu v. United States, 323 U.S. 214 (1944).

[7] National Security and Defense, Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States, The White House.

[8] Epps, “The Generational Significance of the Travel Ban Cases,” The Atlantic, 9 July 2017.

[9] Yamamoto, Loaded Weapon Revisited: The Trump Era Import of Justice Jackson's Warning in Korematsu, Asian American Law Journal, 5-48.