{"id":63238,"date":"2018-04-16T12:27:40","date_gmt":"2018-04-16T12:27:40","guid":{"rendered":"https:\/\/www.biphoo.com\/bipnews\/?p=63238"},"modified":"2018-04-16T12:27:40","modified_gmt":"2018-04-16T12:27:40","slug":"travel-ban-case-shadowed-one-supreme-courts-darkest-moments","status":"publish","type":"post","link":"https:\/\/www.biphoo.com\/bipnews\/politics\/travel-ban-case-shadowed-one-supreme-courts-darkest-moments.html","title":{"rendered":"Travel Ban Case Is Shadowed by One of Supreme Court\u2019s Darkest Moments"},"content":{"rendered":"

Travel Ban Case Is Shadowed by One of Supreme Court\u2019s Darkest Moments<\/span><\/strong><\/h2>\n

I\u2019m calling, very simply, for a shutdown of Muslims entering the United States,\u201d Donald J. Trump said on Dec. 8, 2015. It was early in his presidential campaign, and he was saying that sort of thing all the time.<\/span><\/p>\n

On this occasion, though, he also cited a historical precedent.<\/span><\/p>\n

\u201cTake a look at what F.D.R. did many years ago,\u201d Mr. Trump said. \u201cHe did the same thing.\u201d<\/span><\/p>\n

President Franklin D. Roosevelt signed a 1942 executive order that sent more than 110,000 people of Japanese ancestry to internment camps.<\/span><\/p>\n

\u201cThis is a president who was highly respected by all,\u201d Mr. Trump said of Roosevelt. \u201cThey named highways after him.\u201d<\/span><\/p>\n

Next week, the Supreme Court will hear arguments in a challenge to Mr. Trump\u2019s own executive order, one that restricted travel from eight nations, six of them predominantly Muslim. It is the last scheduled argument of a busy term, and it is likely to yield a major statement on presidential power.<\/span><\/p>\n

The justices will consider how much weight to give to Mr. Trump\u2019s campaign statements. And they will act in the shadow of their own decision in Korematsu v. United States, which endorsed Roosevelt\u2019s 1942 order and is almost universally viewed as a shameful mistake.<\/span><\/p>\n

The Justice Department has worked hard to limit the damage from Mr. Trump\u2019s campaign statements, which were often extemporaneous and rambling. It was hard to tell, for instance, precisely which Roosevelt policies Mr. Trump referred to or endorsed in his 2015 remarks.<\/span><\/p>\n

\u201cImpugning the official objective of a formal national security and foreign policy judgment of the president based on campaign trail statements is inappropriate and fraught with intractable difficulties,\u201d Solicitor General Noel J. Francisco told the justices in a brief filed in February.<\/span><\/p>\n

The challengers \u2014 Hawaii, several individuals and a Muslim group \u2014 took a different view. Mr. Trump\u2019s order, they said, was \u201cthe fulfillment of the president\u2019s promise to prohibit Muslim immigration to the United States.\u201d<\/span><\/p>\n

A pair of supporting briefs, from children of Japanese-Americans held in the detention camps and several public interest groups, went further. They said Mr. Trump\u2019s latest travel ban is of a piece with Roosevelt\u2019s order.<\/span><\/p>\n

\u201cHistory teaches caution and skepticism when vague notions of national security are used to justify vast, unprecedented exclusionary measures that target disfavored classes,\u201d lawyers for the Japanese American Citizens League told the justices.<\/span><\/p>\n

There are, of course, major differences between the two orders, as legal scholars have noted. Roosevelt\u2019s order applied to people living in the United States, many of them citizens, while Mr. Trump\u2019s order concerned nationals of other countries living abroad. (The countries initially included Iran, Libya, Syria, Yemen, Somalia, Chad, North Korea and Venezuela. Last week, the administration lifted restrictions on travel from Chad.)<\/span><\/p>\n

In enforcing Roosevelt\u2019s order, moreover, the military singled out \u201cpersons of Japanese ancestry.\u201d Mr. Trump\u2019s order, by contrast, is neutral on its face, though it disproportionately affects Muslims.<\/span><\/p>\n

Still, the legacy of the Korematsu decision figured in opinions in recent appeals court decisions blocking Mr. Trump\u2019s third and most considered travel ban, issued as a presidential proclamation in September.<\/span><\/p>\n

The Korematsu decision occupies a curious place in the Supreme Court\u2019s jurisprudence, as a grave error that has never been formally disavowed.<\/span><\/p>\n

Justice Antonin Scalia wrote that Korematsu ranks with Dred Scott, the 1857 decision that black slaves were property and not citizens, as among the court\u2019s most disastrous rulings.<\/span><\/p>\n

In 1982, a congressional commission concluded that the internment of Japanese-Americans was \u201ca grave injustice\u201d animated by \u201crace prejudice, war hysteria and a failure of political leadership.\u201d It added that \u201cthe decision in Korematsu lies overruled in the court of history.\u201d<\/span><\/p>\n

But the Supreme Court has never overruled the decision. It remains, in the words of Justice Robert Jackson\u2019s dissent, \u201ca loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.\u201d<\/span><\/p>\n

The supporting briefs in the new case, Trump v. Hawaii, No. 17-965, urged the justices to consider the similarities between the two executive orders. \u201cThen, as now,\u201d one said, \u201cthe government pursued a mass exclusionary measure of sweeping and senseless scope.\u201d Both orders, the briefs said, relied on general characteristics like ancestry and nationality in the place of individualized scrutiny.<\/span><\/p>\n

In defending the Japanese internment, the Justice Department told the Supreme Court that \u201cthe group as a whole contained an unknown number of persons who could not readily be singled out and who were a threat to the security of the nation.\u201d Mr. Trump\u2019s executive order bars entry of large numbers of people \u201cabout whom the United States lacks sufficient information to assess the risks they pose.\u201d<\/span><\/p>\n

In 2011, Neal K. Katyal, then the acting United States solicitor general, issued a \u201cconfession of error\u201d for the actions of government lawyers in the Korematsu case. Mr. Katyal now represents the challengers in the case against Mr. Trump\u2019s travel ban, and 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.<\/span><\/p>\n

But there is little doubt that all of the justices view the case as momentous. On Friday, the court announced that it would release an audio recording of the arguments shortly after they end. That is a rare step, one the court reserves for cases likely to face historical scrutiny.<\/span><\/p>\n

Source:-https:\/\/www.nytimes.com\/2018\/04\/16\/us\/politics\/travel-ban-japanese-internment-trump-supreme-court.html?rref=collection%2Fsectioncollection%2Fpolitics<\/span><\/p>\n

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