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Free Thoughts on Trump v. Hawaii

and the repudiation of Korematsu

1. I was wrong. I predicted at a conference last month that the Court would uphold the proclamation either 7-2 or 6-3, but it was 5-4. Everybody else on the panel was wise enough not to make such a concrete prediction. And though the Court never says so, I'm still not so sure that the Court would have upheld the first version of the travel ban.

2. Donald Trump is mentioned by name only twice in the 39-page majority opinion, once as "President Trump" in the very first sentence of Part I.A, and once as "then-candidate Trump." Every other reference is to "the President." By contrast, Justice Sotomayor's dissent contains repeated references to "President Trump," mentions the "Trump administration," etc. I doubt that either is an accident.

3. The majority's declaration that Korematsu is overruled is an important statement. I confess I had not predicted that the Court might repudiate Korematsu and uphold the proclamation at the same time, but it is a clever move. Few people are going to want to complain that the Court went out of its way to repudiate a case that we all agree deserves repudiation.

Some scholars had suggested that Justice Thomas's prior opinions might provide some support for Korematsu, but Justice Thomas fully joins the majority opinion, including the repudiation.

Technically, the Court does not overrule Korematsu, but says that it has already "been overruled in the court of history," and was "gravely wrong the day it was decided." (Those are two different things -- on the Court's view Korematsu was wrong but precedential on December 18, 1944, and on some other day before today, but we are not told when, Korematsu ceased to be precedential.)

4. As Eugene notes, Justice Thomas's critique of the issuance of national/universal injunctions makes extensive reference to Sam Bray's excellent article on the subject. And as Steve Sachs notes, there is a pending stay application in City of Chicago v. Sessions that looks like a good vehicle for the rest of the Court to decide what it thinks about the practice. (Two of the dissenters argue that a nationwide injunction was appropriate here, but on reasoning that might not extend to the sanctuary cities litigation.)

5. After this opinion, suppose President Trump used his Section 1182 authority to impose a unilateral ban on the entry of all aliens of any kind, perhaps with a stringent waiver process, and called the policy "I'm sorry you can't come in." Would that be legal? I very much hope not, but I am not sure.

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  • TwelveInchPianist||

    "Everybody else on the panel was wise enough not to make such a concrete prediction..."

    "Few people are going to want to complain that the Court went out of its way to repudiate a case that we all agree deserves repudiation."

    Lol. From what I've seen, this (quite reasonable) prediction has already been proven wrong.

    I wonder if the Korematsu repudiation affects affirmative action cases.

  • Brett Bellmore||

    It ought to effect affirmative action cases, but I doubt it.

  • Sebastian Cremmington||

    We were a racist country...no secret there. Anyway, the Hawaiian senator of Japanese descent came here with her family in 1955 so it appears we corrected course fairly quickly at least with Asians. At least they got to get on their high horse.

  • mad_kalak||

    Not sure what you're point is. Is it that we are not racist against Asians as a country? That is debatable considering how they are discriminated against in college applications. They are the "model minority" true, but do you know how racist Asians in Asia are?

  • Sebastian Cremmington||

    If we are racist towards them why do they come here in such great numbers?? Same without Latinos, if Trump is like Hitler and the detention centers like concentration camps one would think they would stop coming here.

  • mad_kalak||

    That is a great double-think that occurs in leftist thought, to be sure. On one hand America is racist, sexist, homophobic, and racist, but on the other hand leftists want lots of southern hemisphere immigration. The cynic says they want the southern hemisphere immigration for the votes and/or for demographic replacement. While I think that is true, I also think leftists also honestly feel that the reason much of the world is poor and underdeveloped is due to America's foreign policy, so the residents of poor countries should be able to come here and get a piece of the pie, and that they are enriching to the culture in America when they do so.

  • Sebastian Cremmington||

    I think you are correct that leftists believe America "steals" from other countries and thus they are owed something. That rationale fails because if you simply took all of the residents of San Diego and put them in Tijuana and vice versa then Tijuana would become San Diego!! The only way the "city on the hill" is perpetuated is by assimilation to our values and work ethic and, yes, then poor foreigners can become well to do but only if they leave their dysfunctional culture behind.

  • regexp||

    Even a racist, sexist, homophobic America is better than being raped, tortured, and killed in their own country.

    Think about that for a moment and maybe you'll finally understand what people go through to find a better ... or really ... any life for them and their families.

  • Sebastian Cremmington||

    Boo hoo. I would try to come to America by any means if I lived in a s-hole country ruled by Muslims but I also would understand if I couldn't get in.

    Btw, it is so strange that the people making the country a s-hole are Muslims because Islam is a religion of peace and it quite obviously the best religion. You know what, you should convert to Islam! So should Sotomayor!! Adults in America can be any religion they choose and they are not bound by the stupid Christian religions of their racist slave holding forefathers!!

  • mad_kalak||

    I think we need to draw a clear distinction between actual refugees from war/strife, and those just who want to come to U.S. because the standard living is higher. The former clearly has more merit for immigration than the latter, which usually comes here illegally.

    And starting a contest about empathy is no way to have a productive debate. Irregardless of the actual effects of immigration, legal and legal, there is no winners who you have a contest as to "who's more empathetic"; the leftists who wants to let people in, or the conservative who wants to help the people already here.

  • TwelveInchPianist||

    "Even a racist, sexist, homophobic America is better than being raped, tortured, and killed in their own country."

    According to CBS News, experts in the field say that the US is more dangerous for women than any country in the Americas. So if expertise in this field means anything at all, Sessions was completely correct in deciding that the US is no place for women to seek asylum. If fact, if we listen to experts, maybe we should be deporting American women to Latin America, for their own safety.

  • Sarcastr0||

    I think you're confusing statistical truth for individual truth there, TiP.

  • Rossami||

    No, he's parodying the statistical "truth" offered by those "experts". That article was ludicrous on its face.

  • steeltown lad||

    "Asia" is a pretty big place, from the Bosporus to the Kamchatka peninsula. Which Asians are you referring to? And, are Japanese "Asians" or "Pacific Islanders"? Oh what tangled webs we weave.

  • Sebastian Cremmington||

    Whatever. Africans are coming here in record numbers, I guess they are just dummies coming to a racist country.

  • mad_kalak||

    Okay, East Asia, if you ask me to get specific. I can't speak to Siberan Russia or the Hawaiian Islands. The Chinese in particular are very racist against blacks, the Koreans and Japanese only slightly less so. Any 1/2 Asian 1/2 black kid from Korea, usually as a result of an American service-member, is left to the streets unless adopted and brought here. And the Japanese, well, one can never be truly Japanese unless born in Japan to two full Japanese parents. It is not unusual today to see a "No Gaijin Allowed" sign in Japan today.

  • Sebastian Cremmington||

    That is why that absurd senator from Hawaii got my dander up by referring to Korematsu. She was born in an extremely racist country that committed atrocities during WW2 and then her family came here of their own free will in 1955 and she has the audacity to bring up Korematsu??? She has Japanese citizenship and she is free to return to Japan is she is sick of having the cushiest job on the planet with a salary and benefits paid by evil wealthy Americans!!

  • Brett Bellmore||

    5. I suppose if he had a detailed, government-wide evaluation of immigration, that concluded that it was necessary. Part of the basis of the ruling was that the ban wasn't just off the cuff, but the result of careful consideration.

  • bernard11||

    Careful consideration. Right. The Court swallowed that without gagging. Amazing.

  • mad_kalak||

    What standard of consideration would you consider careful enough? How think does the white paper have to be that supports the ban?

  • JesseAz||

    Bernard honestly doesn't know what careful thought even is.

  • aluchko||

    There was a careful consideration.

    It just wasn't a careful consideration of the security of the US.

    It was about how to get something they could call a Muslim ban.

  • mad_kalak||

    So the marriage between Korematsu and the Court was annulled, so to speak? Interesting.

  • Rev. Arthur L. Kirkland||

    Today's Court majority seems likely to continue to shack up with Korematsu from time to time.

  • mad_kalak||

    Okay, now that's funny. *slow clap*

  • Joe_dallas||

    : Black, joined by Stone, Reed, Frankfurter, Douglas, Rutledge

    All six justices voting against Korematsu were appointed by a democratic

    Who are the racists

  • Smooth Like a Rhapsody||

    Not only that; but, even today, Black and Douglas are heroes on the left.

  • smilerz||

    " After this opinion, suppose President Trump used his Section 1182 authority to impose a unilateral ban on the entry of all aliens of any kind, perhaps with a stringent waiver process, and called the policy "I'm sorry you can't come in." Would that be legal? I very much hope not, but I am not sure."

    As a matter of policy that would be awful - but are there really ANY checks on the immigration power? AFAIK the Constitution doesn't address it.

  • David Nieporent||

    As a matter of policy that would be awful - but are there really ANY checks on the immigration power?

    Well, there's Congress.

    If they don't like Trump's policies in that regard they can overrule them at any time.

  • smilerz||

    I should have clarified - judicial checks. Of Congress's power on immigration too for that matter.

  • Procyon Mustelid||

    If it doesn't mean having to pay money out of pocket or spend time in jail, calling it a "check" on anyone's behavior is deceitful.

  • smilerz||

    huh?

  • Procyon Mustelid||

    Congress is not a real check on anyone in the Executive Branch. Pretty much the only checks on them are the anemic Bivens action and the winning-lottery-ticket rarity of successful criminal prosecution.

  • JesseAz||

    So they couldn't change the law that the WHite House relied on... interesting. Congress can't pass laws. Got it.

  • Bob from Ohio||

    "Would that be legal? I very much hope not, but I am not sure."

    I would bet the court would say everyone in the world is too big to be a "class" within the meaning of the statutory grant of authority.

    There is little doubt that Congress could ban all immigration either directly or through a grant to the executive.

  • branford||

    Thus, the check on the president's power would be Congress, and still not the courts.

    Every perceived failure of policy need not be remedied by the judiciary. That's why we have regular elections.

  • Procyon Mustelid||

    What is the point of having courts at all except for them to try to fix and punish all wrongdoing?

  • dwb68||

    "suppose President Trump used his Section 1182 authority to impose a unilateral ban on the entry of all aliens of any kind, perhaps with a stringent waiver process, and called the policy "I'm sorry you can't come in." Would that be legal?"

    it very likely would be**. Moreover, it is completely non-discriminatory (bans everyone!), so I am not even sure its justicable.

    It may be bad policy, but not all bad policies are illegal, unconstitutional, or even reviewable by the judiciary.

    ** There may need to be a stringent waiver and also carve-out exceptions for certain quota-based immigration like H1-B visas and the lottery.

    Also: dont give him ideas. This would likely be hugely popular with his base.

  • Krayt||

    Both parties wanted to inhale people from south of the border as fast as possible to shore up social security

    Then someone noticed these folks tended to vote Democrat. Then the Democrats seemed to abandon their working class base in favor of the immigrants, and Trump took advantage of that, turning blue states back to purple Reagan Democrat.

    And here we are. Not sure anybody's motives are clean.

  • Sebastian Cremmington||

    SS isn't the problem it is Medicare. So Mexicans are the best immigrants because they are more likely to retire in Mexico in which cost of living is much cheaper and the climate is exponentially better than Texas or affordable areas of California. So SS checks can be sent abroad but Medicare is only available in America so Mexico would foot the health care bills for immigrants that retire in Mexico!

    So once Central Americans started outnumbering Mexicans illegal immigration became a net negative because Central Americans will not be retiring to those s-holes!! So not only would they get SS but we would also foot their medical bills.

  • Procyon Mustelid||

    Medicare, Social Security, what difference does it really make? They're both programs that young workers to keep the elderly from dying on time like they're supposed to. They were both mistakes and they should both be ended.

  • MatthewSlyfield||

    I'm pretty sure no one's motives are clean. Not even mine. :)

  • damikesc||

    2. Donald Trump is mentioned by name only twice in the 39-page majority opinion, once as "President Trump" in the very first sentence of Part I.A, and once as "then-candidate Trump." Every other reference is to "the President." By contrast, Justice Sotomayor's dissent contains repeated references to "President Trump," mentions the "Trump administration," etc. I doubt that either is an accident.

    So the majority is "all Presidents can do this" and Trump isn't special. Sotomayor is "Trump is bad". Yeah, solid jurisprudence there. God did Obama get two terrible justices confirmed.

    After this opinion, suppose President Trump used his Section 1182 authority to impose a unilateral ban on the entry of all aliens of any kind, perhaps with a stringent waiver process, and called the policy "I'm sorry you can't come in." Would that be legal? I very much hope not, but I am not sure.

    Given that entry by non-citizens is not a right, I do not see any actual legal battle to oppose it.

  • steeltown lad||

    In her dissent Sotomayor often contemptuously refers to the Pres just as "Trump". The Wise Latina, fully down with the Resistance.

  • Martinned||

    So what you're saying is that the way one of the Supreme Court justices referred to the president hurt your feelings? Do you need a tissue, snowflake?

  • damikesc||

    It's in indication that perhaps she was a bit less than impartial. I'd also argue Ginsburg should recuse herself from any case involving Trump given her comments about him.

  • steeltown lad||

    Didn't hurt my feelings even a little bit. I'm enjoying the "so much winning". But clearly her jurisprudence is motivated by bias and vitriol which leads to intellectually dishonest opinion writing.

  • JesseAz||

    What is with liberals and this misconstruction of hurt feelings? Just because solely rely on feelings and your truth doesn't mean others do. He's pointing out that while the left claims Trump is destroying all societal norms, Sotomayor seems to be as well.

  • aluchko||

    Not to harp too much on it.

    But your insistence on referring to her race through the "Wise Latina" reference is an unflattering tell on your own biases.

  • rsteinmetz||

    Makes you wonder if some of the opposition is motivated by animus to President Trump?

  • Bob from Ohio||

    "The majority's declaration that Korematsu is overruled is an important statement."

    We used to call such "statements" obiter dicta and ignore them.

    A similar result to Koramatsu would likely be repeated if a big enough war would break out again. No court would be happy to interfere with a total war.

    The Court only interfered with Gitmo once the crisis settled down a bit and Bush lost popularity.. And then only to say "respect our authority". How many Gitmo inmates won in the lower courts?

  • Sebastian Cremmington||

    The longtime senator from Hawaii was of Japanese descent and he served in the military during WW2. The current senator from Hawaii is of Japanese descent and her family came here in 1955, were Jews going to Germany in 1955??? Maybe the people of that time understood the internment camps as reasonable on some level. We did also have Jim Crow at that time so it strikes me as strange that the Court believes Korematsu sullies the reputation of the Court—we were a racist country!!

  • Martinned||

    Agreed. The statement on Korematsu seems obiter, and the Bush jr.-era GITMO cases have shown that the modern court, even if it is majority liberal (in whatever sense) will not protect civil liberties against a sufficiently large pile of national security hysteria.

    (Same in the UK. There's a reason why Lord Atkin's iconic dissent in Liversidge v. Anderson was just that, a dissent. The case was 3:1. The fact that it's been repudiated many times since 1941 won't stop the exact same thing happening again if a big enough war would break out again.)

  • rsteinmetz||

    The plaintiffs used Koramatsu in their appeal, Roberts wrote to say locking up American citizens and keeping out foreigners are not the same, they're not even close, Koramatsu was bad.

  • Martinned||

    Yes, but that doesn't mean that Korematsu is no longer good law. The Supreme Court can't just discuss precedents it doesn't like while deciding something unrelated. (Or, to be precise, it can discuss whatever it likes, but doing so doesn't change the status of those precedents as binding case law.)

  • rsteinmetz||

    Yes but to overrule a precedent there must be a case on point and this wasn't it nor is there likely to be one.

  • Martinned||

    Indeed. But that doesn't change the fact that the Court's statements about Korematsu are legally irrelevant. Just a nice gloss to polish a turd.

  • David Nieporent||

    Many circuits treat Supreme Court dicta as binding.

  • Martinned||

    Yes, and whether they ought to is a conversation for another day...

  • MonitorsMost||

    Korematsu should not be overruled. It articulates (and gives birth to) the correct standard: strict scrutiny. The case is just a poor application of the facts to the law coupled with misrepresentation of facts to the court.

    Could internment of an entire coast based on national origin pass strict scrutiny today? Probably not without resorting to a fact pattern sounding in science fiction (pathogen that is only communcable from those of a specific national origin; alien invasion where aliens can only pose as/mind control a certain ethnicity).

    But break it down to a smaller level. Say the U.S. has good intelligence that a terrorist agent of Japanese decent has acquired a nuclear device. Based on cell towers they have narrowed down the agent's location to a one mile radius. Could the government seize all the people of Japanese origin in that radius temporarily until they can vet and confirm they aren't the terrorist? Yeah, I think that probably gets you past strict scrutiny.

    Just my thoughts.

  • Eidde||

    "Technically, the Court does not overrule Korematsu, but says that it has already "been overruled in the court of history," and was "gravely wrong the day it was decided." (Those are two different things -- on the Court's view Korematsu was wrong but precedential on December 18, 1944, and on some other day before today, but we are not told when, Korematsu ceased to be precedential.)"

    I suppose the Court is alluding to the judicial proceedings showing that the Department of Justice misled the Court in the Korematsu case - not to mention the Act of Congress compensating the surviving internees.

  • Greg J||

    The U.S. has nearly unlimited power to decide when foreigners are admitted to the country, even based on factors (such as ideology, religion, and likely race and sex) that would be unconstitutional as to people already in the country.

    Um, no sh!t? What part of "foreign nationals seeking admission have no constitutional right to entry" was it so hard for people to understand?

    What part of "the US Constitution" do people not understand? "US" It means it's ours, and it applies to us.

    I mean, I'd be happy for the US to start enforcing the 2nd Amendment on all of Europe, the UK, Canada, Australia, and New Zealand. Hell, let's start enforcing the 1st Amendment on the UK!

    No?

    Then let's stop this gross stupidity of pretending that the Bill of Rights ever has, or shoudl, apply to non-US citizens not in the US

  • Sarcastr0||

    A lot of rights are forbidding the government, not grants to individuals.

  • ||

    Forbidding the government from acting in a certain way toward people within its jurisdiction.

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