Travel Ban Case will be Shadowed by One of Supreme Court’s Darkest Moments

The justices will consider how much weight to give to Mr. Trump’s campaign statements. as well as they will act inside the shadow of their own decision in Korematsu v. United States, which endorsed Roosevelt’s 1942 order as well as will be almost universally viewed as a shameful mistake.

The Justice Department has worked hard to limit the damage through Mr. Trump’s campaign statements, which were often extemporaneous as well as rambling. that will was hard to tell, for instance, precisely which Roosevelt policies Mr. Trump referred to or endorsed in his 2015 remarks.

“Impugning the official objective of a formal national security as well as foreign policy judgment of the president based on campaign trail statements will be inappropriate as well as fraught with intractable difficulties,” Solicitor General Noel J. Francisco told the justices in a brief filed in February.

The challengers — Hawaii, several individuals as well as a Muslim group — took a different view. Mr. Trump’s order, they said, was “the fulfillment of the president’s promise to prohibit Muslim immigration to the United States.”

A pair of supporting briefs, through children of Japanese-Americans held inside the detention camps as well as several public interest groups, went further. They said Mr. Trump’s latest travel ban will be of a piece with Roosevelt’s order.

“History teaches caution as well as skepticism when vague notions of national security are used to justify vast, unprecedented exclusionary measures that will target disfavored classes,” lawyers for the Japanese American Citizens League told the justices.

There are, of course, major differences between the two orders, as legal scholars have noted. Roosevelt’s order applied to people living inside the United States, many of them citizens, while Mr. Trump’s order concerned nationals of different countries living abroad. (The countries initially included Iran, Libya, Syria, Yemen, Somalia, Chad, North Korea as well as Venezuela. Last week, the administration lifted restrictions on travel through Chad.)

In enforcing Roosevelt’s order, moreover, the military singled out “persons of Japanese ancestry.” Mr. Trump’s order, by contrast, will be neutral on its face, though that will disproportionately affects Muslims.

Still, the legacy of the Korematsu decision figured in opinions in recent appeals court decisions blocking Mr. Trump’s third as well as most considered travel ban, issued as a presidential proclamation in September.

The Korematsu decision occupies a curious place inside the Supreme Court’s jurisprudence, as a grave error that will has never been formally disavowed.

Justice Antonin Scalia wrote that will Korematsu ranks with Dred Scott, the 1857 decision that will black slaves were property as well as not citizens, as among the court’s most disastrous rulings.

In 1982, a congressional commission concluded that will the internment of Japanese-Americans was “a grave injustice” animated by “race prejudice, war hysteria as well as a failure of political leadership.” that will added that will “the decision in Korematsu lies overruled inside the court of history.”

however the Supreme Court has never overruled the decision. that will remains, inside the words of Justice Robert Jackson’s dissent, “a loaded weapon, ready for the hand of any authority that will can bring forward a plausible claim of an urgent need.”

The supporting briefs inside the brand-new case, Trump v. Hawaii, No. 17-965, urged the justices to consider the similarities between the two executive orders. “Then, as at that will point,” one said, “the government pursued a mass exclusionary measure of sweeping as well as senseless scope.” Both orders, the briefs said, relied on general characteristics like ancestry as well as nationality inside the place of individualized scrutiny.

In defending the Japanese internment, the Justice Department told the Supreme Court that will “the group as a whole contained an unknown number of persons who could not readily be singled out as well as who were a threat to the security of the nation.” Mr. Trump’s executive order bars entry of large numbers of people “about whom the United States lacks sufficient information to assess the risks they pose.”

In 2011, Neal K. Katyal, then the acting United States solicitor general, issued a “confession of error” for the actions of government lawyers inside the Korematsu case. Mr. Katyal at that will point represents the challengers inside the case against Mr. Trump’s travel ban, as well as he may face an uphill fight next week. In December, the Supreme Court allowed the latest travel ban to take effect while the case moved forward, with only two justices noting dissents.

however there will be little doubt that will all of the justices view the case as momentous. On Friday, the court announced that will that will would certainly Discharge an audio recording of the arguments shortly after they end. that will will be a rare step, one the court reserves for cases likely to face historical scrutiny.

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