Wednesday, June 27, 2018

Korematsu II

Sar Shalom

During World War II, the US government claimed that simply being of Japanese ancestry constituted a threat to national security. In 1944, the Supreme Court the "Pressing public necessity may sometimes justify the existence of" restrictions against one specific group.

In justifying his decision yesterday, Justice Roberts engaged in a craven act of sophistry by arguing that Korematsu had “nothing to do” with the travel ban case. Roberts justified that statement by stating that internment was based “solely and explicitly on the basis of race.” The issue is, why did the Court find it legitimate to discriminate based solely and explicitly on the basis of race? The answer is that the Court accepted the government's claim that there was a national security necessity to do so.

Now that Justice Roberts describes Korematsu as being a racial decision, it must mean that he rejects the national security argument underlying it. If he rejects Roosevelt's claim of national security, what basis does he have for deferring to Trump's claim? Justice [J.] Roberts is no Justice [O.] Roberts.


  1. Did you feel this way about the Carter Administration?
    Of course, in your argument is the implicit assumption that Korematsu is the only defining feature of his decision rather than a response to one argument presented to the court. Is that true?
    Also, what does the present court's decision have to do with placing American citizens in internment camps?

    1. I have no idea what you're referring to in the Carter Administration? There are things Carter did that I like and a fair amount that I don't. Can't think of anything that fits the current case. Any examples?

      I don't know whether or not Korematsu was a factor during oral arguments or in any of the briefs, but it was a substantial component of Sotomayor's dissent. It was compelling enough that Roberts felt compelled to respond.

      Why does the present case have to include internment in order for Korematsu to be relevant? Both cases involved government claims national security considerations were sufficient to justify discrimination based on nationality. Without getting into the merits of that argument directly, Roberts felt compelled to respond. Do you think he would have done so if it was irrelevant?

      The question remains, in what way does Trump's claim that national security requires barring nationals of 7 nations deserve deference that Roosevelt's claim that national security required barring those of Japanese ancestry from an exclusion zone?

    2. He stopped Iranians from coming into the country and kicked out many here including on student visas.

  2. I would entirely fine if we allowed every single person from the Mideast in, unchecked, for free, without any restriction, if we also did two things. 1) microchip and or otherwise biometrically tag them and 2) stuff them into sanctuary cities and states. Every time they are found outside of those places they are transported back to those places. No courts, no hearings, no detention, no exclusion, no waiting period, no Federal issues at all.

    I think that's really the only place where the EU went wrong. They take in everyone, but then they do a terrible job and tracking them. It's a legal barrier of sorts where the EU assumes that every member state is a 'sanctuary nation' or if it's not, it can be compelled to be one by the European Parliament. That would be the only glitch as it were. If Hungary wants to regulate them, for whatever reason, even, amazingly, the practical one of they simply can't afford or manage it (See Malta - now stuck with 10's of thousands of 'refugees' it can't support and can't deport).

    But on the whole, I'm with you. Everyone from the Mideast, North Africa, Sudan, Somalia, the entirety of Central America, the Caribbean and of course the entire population of Venezuela. But they have to stay and live in one of our sanctuary places and at the expense of those places. Moreover, change "The Wall" so that it stops at the CA/AZ border, turns north, to NV and continues north to the Oregon line, then east to Idaho and north again all the way to Canada.

    1. That is absolutely not what I favor. I am all for vetting people, especially for people from places where there are many threats to this country. The problem is that Trump's order exacts “punishment for ... based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States,” in the words of Justice Owen Roberts.

      Got to hand it to you though. You're a great fighter against strawmen.

    2. I wasn't kidding though. I am dead serious. I believe we should give them their head to whatever extent they desire. If they don't want borders then fine, no borders. I would be 100% ok with that. For example, Austin Tx believes that being a sanctuary city isn't far enough. They want to be a 'freedom city' where essentially there's no police and no law enforcement at all except possibly a mass murder shooting spree. I am ok with that. I've always said that the problem with social science is that there's no empirical testing. Here's an opportunity to do just that. Communities all over the US are calling for de-policing for different reasons. Ok. Let's test it out. So again, the agitators and activists who don't want borders or border laws and a dissolution of citizenship? Alright. It's an ideal nexus where we can try that out. But again, as long as its regionally contained.

    3. Aghghghghg!!!!


      George Carlin had a similar idea.

      Take the rectangular states and turn them into prison camps for live national television!

      {Jesus Christ.}

      Oh, man, thanks for the crack-up.

      I needed that.

  3. Korematsu involved US CITIZENS, who are protected by the Bill of Rights. What FDR did was wrong.

    When did people, not citizens, nor inside the country, obtain the right to enter the country?

    1. When Congress passed statutes giving them that right. The statutes state what criteria the State Department may use and may not use in determining who may receive a visa.

      If your argument held any water, the opinion would have said that the president has the right to admit or deny entry to any non-citizen for any reason or for no reason. It did not say so. It said that the Court was required to defer to the president's assessment of national security requirements.

      The central issue remains deference to the president's claims about national security. How is Trump's claim valid regarding Iranians, Yemenis, etc. whereas Roosevelt's claim regarding Japanese was not?

    2. Not making an argument, that's what you are doing.

      Stating simply that the Constitution protects US Citizens and people inside the country, not aliens abroad (excepting green card holders) seeking to enter.

      That is where your argument falls on its face.

      And when it comes to administration of immigration, the executive's power is virtually plenary. The Japanese-Americans were not aliens, but citizens, and the plenary power does not exist in their case.

      You are the one missing the central issue.

    3. Again you are talking about locking up American citizens vs. allowing foreign nationals into the country from places that might pose a threat to American citizens, aka hot beds of jihadi terrorism.
      Roosevelt's concerns could have been valid, i.e., there might have been a danger of espionage. But the fact remains that they were American citizens, whereas a shephard in some far flung country isn't. It is prudent to hold back people from coming here under certain conditions until mechanisms can be worked out to allow entry that doesn't endanger us.

      Congressional statutes for the State Department are separate from presidential authority over national security issues. Congress can establish rules, but it cannon establish rights through statute.
      Can the Congress override the constitutional powers (rights) of the Executive by statute? I don't think so.

    4. oldschool:
      "Stating simply that the Constitution ..."

      Apparently you lack the intellectual integrity to accurately state my argument. I said that it's they are protected by STATUTE. If I am wrong, then if you go through the statute, you would find you could find that no such right exists. Arguments about the Constitution shed no light on that matter.

      "And when it comes to administration of immigration, the executive's power is virtually plenary."

      You mean the power to "establish an uniform Rule of Naturalization." Wait, that's in Article I dealing with Congress' power. You're not entitled to your own facts about how power is divided. There is absolutely nothing about establishing rules of entry into the US in Article II.

    5. Could care about responding to your "argument." Especially when you engage in disparagement. Theoretical arguments don't impress.

      You mentioned Korematsu. However, you fail to distinguish between citizens inside the USA and non-citizens outside the USA. So who is intellectually dishonest? That, in itself, allows for disparate treatment.

      Have you ever read the Immigration Act, the CFRs and case law. They establish the virtually plenary power of the executive. It's not at all about dividing power, but the grant of power under the laws.

    6. Jeff:
      "It is prudent to hold back people from coming here under certain conditions"

      As Justice Owen Roberts put it, this order was issued "without evidence or inquiry" as to their disposition towards the US.

      "Congressional statutes for the State Department are separate from presidential authority over national security issues."

      The president is commander in chief of the Army and Navy. That is not absolute authority over national security.

      "Can the Congress override the constitutional powers (rights) of the Executive by statute?"

      What section and paragraph of Article II gives the president the power you claim he has? Look at Article I, Section 8, Paragraph 4.

    7. oldschool:
      Read Article I, Section 8, Paragraph 4.

      If it's so clear that citizenship status makes all the difference between Korematsu and the present case, why didn't John Roberts make that claim?

      Citizenship also has no bearing on whether claims about acting on behalf of national security are genuine or fig leaves for ulterior motives.

      "They establish the virtually plenary power of the executive."

      If that's so, then Obama would have had the power to legalize anyone he would have wanted to. You can't claim presidents have the plenary power to implement policies you like, but not ones you don't.

      "Especially when you engage in disparagement."

      I didn't engage in disparagement until you distorted my argument. Convey my arguments accurately and I won't disparage you for misconstruing my arguments.

    8. Because the case turned on the president's clearly established power to regulate in the field of immigration. Courts don't usually deal in extraneous stuff that serves as dicta. YOU raised Korematsu, and ignored the obvious reason why Korematsu would not apply.

      To point out why Korematsu does not apply is not distorting your "argument." Your justification to disparage is ridiculous. It is NEVER appropriate to make it personal. Get it?

    9. Sar,
      So I guess that according to you it's me against the courts, except of course the Supreme Court, and except that I'm not making an argument for or against the wisdom of the policy in question, because, frankly I can say I don't really know what its effects will be. But I do know that it doesn't affect most Muslims, and I know that putting American citizens in internment camps is not the same as immigration policy.
      So, was it beyond Jimmy Carter's power to kick Iranians out of the country?

    10. Having now read the complete opinion and Sotomayor dissent in the entirety, it's more clear than ever the Proclamation is valid, for the reasons stated from the beginning.

      Sotomayor, in equating aliens to citizens, without addressing the differences in their entitlements under immigration law, is wrong-headed and "intellectually dishonest." Frightening approach for a Supreme.

    11. "Sotomayor, in equating aliens to citizens, without addressing the differences in their entitlements under immigration law, is wrong-headed"

      The notion that the citizenship status matters in this issue is about as settled as, say, the notion that 4GC 49(6) prohibits Israel's settlements.

    12. It matters to illustrate what aliens are not otherwise entitled to. Discrimination is permitted in immmigration law against aliens in ways not permitted against citizens. Not even sure what you're arguing about. This was an easy case to analyze. The Sotomayor approach ignored clear law and precedent for politics. We are better off that it failed.

  4. And if all of these people really ARE refugees then two things should happen per the very rules that the people who advocate this are employed.

    1 create refugee camps in some place where they can be processed. not necessarily the country of their 'desired' destination but some other place for instance, Cuba or Belieze.

    2 the UN and all interested parties must work to eventually RETURN all these refugees to the countries of their origin, much like, of course all the 'palestinians' are to be eventually returned en masse to 'palestine'. That is, after all the point of tagging a group as a mass migration of refugees.

    There are only 3 other legal options;

    1 - they're not refugees but instead are economic migrants, in which case under international law we would need pre existing treaties with those countries to allow this such as the Schengen Area Agreement or the treaty between Sweden and Finland that allows native Finns to declare themselves economic migrants to Sweden (believe it or not Finns are one of the largest groups of 'refugees' in Sweden. You known, given the medieval horrors of Finland, etc)

    2 - they're political refugees fleeing an oppressive GOVERNMENT. Such as opposition politicians from Iran or religious minorities like the Uighars in China. The key here is that they are fleeing an oppressive government

    3 - they are fleeing an ongoing war. Now this is tough one because there are no recognized wars in Central America or Mexico. There are gangs, cartels and conflicts and the cartel wars in Mexico have killed north of 200,000 people since the year 2001......but it begs the question why someone would run INTO it to get to us.

    1. "And if all of these people really ARE refugees then two things should happen per the very rules that the people who advocate this are employed."

      And what about people who have permanent resident family in the US and only intend to visit?

    2. Then they are visitors who, from those very same countries must apply for a visa which can be approved or denied. There are plenty of countries that US passport holders must get a visa to enter.

      Guess what, most of them are Muslim countries.

  5. Another court case to consider though is Debs v US. That's where Great and Liberal Progressive Woodrow Wilson first pressured Congress to pass the Espionage act of 1917 and then proceeded to arrest and imprison political opponents under the new law. Debs was a socialist. Wilson decided that Debs should not be allowed to have a voice so he was tried and convicted of espionage and sentenced to 10 years. Truly a form of censorship the left endorses.

    BTW Debs lost his Supreme Court case, went to prison in 1919, ran for President in 1920, got nearly a million votes and and was commuted (not pardoned) by President Harding in 1921 after repeal of most of the 1917 law.

    This is how government typically handles dissent. One would think, watching MSNBC that there are hundred of crematoria all over America right now incinerating all of Trumps critics. Hmm. I haven't seen any.

  6. Well, the facts are that THIS travel ban is NOT strictly racial. It includes Venezuela and N Korea and excludes heavily Muslim Iraq and many other Muslim majority countries. The issue is quite simply inadequate vetting. Some justices are obviously able to read.

  7. According to dKos, Alexandria Ocasio-Cortez is "the paradigmatic example of a Better Democrat." Of course she is; she supports Hamas over Israel.

    1. How is she better, according to them?

    2. I think that she is pretty.

    3. A lot of snakes are pretty Mike. ;)

      Throughout the recent New York District 14 primary, Ocasio-Cortez “attacked Crowley for his race saying that, as a white man, he was not fit to represent the district. She explicitly said this election is about race.”

    4. Sorry. That was a bit of dry humor!

    5. This is what I am considering at the moment:

      Sarsour: Martin Luther King Warned Us About People Like Chuck Schumer

      Linda Sarsour and her co-organizers of the Women's March said that the American citizenry should follow "women of color."

      Whatever the specificities of her grievance with Schumer, Linda Sarsour should be the very last person evoking Martin Luther King, Jr.

      MLK was a liberal. He believed in the individual.

      This is why he admonished us to judge people according to their character, not their ethnicity.

      What I think and "Oh, I say and I say it again, ya been had!

      Ya been took!

      Ya been hoodwinked!


      Led astray!

      Run amok!" - Malcolm X

    6. "Sorry. That was a bit of dry humor!"

      And it was funny.

    7. One question that should be considered is how many Democrats of that ilk have been nominated to challenge Republican incumbents. In many cases, the actual challengers if successful would just replace pro-Israel Republicans with likely pro-Israel Democrats.

      I hope Larry Hogan wins reelection. If he doesn't, it would feed the Bernie-bots the idea that they can not only win the primaries in two years, but that their way can win the general.

  8. Brett Stephens has an excellent column today. Shows what is meant by "keeping us safe."

  9. Brett Stephens presents a typical strawman argument. It's all about the improvement of vetting where poor vetting exists.

    "Section 1. Policy and Purpose. (a) It is the policy of the United States to protect its citizens from terrorist attacks, including those committed by foreign nationals. The screening and vetting protocols and procedures associated with the visa-issuance process and the United States Refugee Admissions Program (USRAP) play a crucial role in detecting foreign nationals who may commit, aid, or support acts of terrorism and in preventing those individuals from entering the United States. It is therefore the policy of the United States to improve the screening and vetting protocols and procedures associated with the visa-issuance process and the USRAP."

    Brett Stephen's seems to suggest that such additional layers of protection are not needed because bla bla bla. What a moronic outlook. Anyone truly concerned with keeping Americans safe can't present a rational argument against better vetting.

    "Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones. Any of these circumstances diminishes the foreign government’s willingness or ability to share or validate important information about individuals seeking to travel to the United States. Moreover, the significant presence in each of these countries of terrorist organizations, their members, and others exposed to those organizations increases the chance that conditions will be exploited to enable terrorist operatives or sympathizers to travel to the United States. "

    Sounds reasonable to me. Why would anyone want to take the chance except to paint Trump as a Nazi or something? It's a TEMPORARY ban. Presumably, once the vetting stuff is in proper order it will be lifted; unless of course one thinks Trump is Hitler.

    1. This was the most specific Proclamation ever, in terms of explaining its origin and methodology, applicability, procedures, waivers, etc. Not to mention the statutory authority itself and legal precedents that allow interference ONLY if there is no other basis than bigotry.

    2. I'm pretty sure that Hitler was Hitler.
      Bret Stephens hates Trump, so one must always keep that in mind. He is right though that the temporary travel ban wouldn't have stopped people already here or American citizens from carrying out attacks. Duh.
      One of the ludicrous examples he used was Steve Jobs natural father. Yes Brett, if there had been a credible jihadist threat and Syria was having a civil war, when none of those things were going on, and Trump was president and had responded to these things that weren't happening at that time with a temporary travel ban, then Steve Jobs would not have been here to invent Apple Computers.

    3. Ever hear of the word bacronym? It is the crafting of a phrase whose initials spell a word to create the appearance that the word is derived as an acronym of said phrase. Such is the case with the introduction to the travel ban.

      Cite factual evidence from the record that the following is not what happened:

      The president decided on alternative grounds that he wanted to exclude certain people. His first order approximating that was struck down, so he needed to craft a legal justification. That introduction fit the bill. But, it couldn't be applied to everyone whom he originally wanted to ban, so he scaled back the ban.

      Evidence for that explanation comes from all the speeches he gave in which he called for a ban on Muslims entering the country.

    4. "Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones."

      And for those shouting "Death to Palestine," "Death to the dictator," or "My life for Iran, not for Gaza?"

  10. Brett Stephens is a queer duck. A Court Jew for the NYT. He's not a conservative or much of a Republican. But for the Times, anyone to the right of Pol Pot would be called 'conservative'.

  11. One issue that none of you address is that the rationale that justified the travel ban is the same rationale that justified Korematsu. The opinion justifying it says nothing about the targets not being citizens. Given that if the different citizenship statuses between the cases was a legally relevant fact, mentioning that fact in the opinion would have made it a slam dunk. The opinion did not mention it. The only reason I can think of for not mentioning it is that it is not a legally valid point because the fact is not legally relevant.

    1. This case WAS a slam dunk! It was wrongfully decided by activist progressive judges who inserted politics into what was rather clear law. The dissenters doubled down, burnishing their progressive credentials. This should have been a 9-0 decision.

      Korematsu was not relevant to the decision. The only reason Roberts addressed it, tangentially, was because Sotomayor raised it in her dissent. It was a frivolous, emotional rant she penned, not a legal argument. If there was legal basis to consider Korematsu, the citizenship issue would have been front and center, but the argument that it provides precedent is extreme, especially under the facts of this case.

      That said, Roberts DID make the distinction. He said:

      "The forcible relocation of U.S. CITIZENS to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain FOREIGN NATIONALS the privilege of admission." (Emphasis added.)

      Do you actually believe that aliens and citizens are to be treated equally under the Constitution? That someone outside the country has the same entitlements as one inside the country? Immigration benefits are not fundamental rights. Korematsu was wrongly decided, as Roberts made clear. Give it up already!

    2. One other thing, the rationale was NOT the same. Korematsu was about "military necessity." Hawaii v. Trump, and under immigration law generally, allows the president to act when he determines that entry of aliens or any class of aliens would be "detrimental to the interests" of the U.S. Not to mention the wholly different levels of scrutiny by which to analyze constitutionality in the two cases.

    3. "Do you actually believe that aliens and citizens are to be treated equally under the Constitution?"

      Aliens can be expelled on much weaker evidence than is required to incarcerate a citizen. It does not follow from that that an entire class of outsiders can be barred without inquiry as to their individual disposition towards the US. Or do you claim that if an alien comes in and rubs the immigration officer the wrong that the immigration officer would be within his rights to pull out a gun and shoot the alien dead on the spot? By your logic, the prohibition of taking someone's life without due process of law doesn't apply to non-citizens.

      "Korematsu was about 'military necessity.'" Hawaii v. Trump, ..., allows the president to act when he determines that entry of aliens or any class of aliens would be 'detrimental to the interests'"

      And that is consequentially different how exactly?

      It's not just the liberal justices on the Court who saw the parallel. Karen Korematsu, daughter of Fred Korematsu, said that the ruling "dishonors him and all the civil rights work he did over the years."

      Do you claim that in the current case, there is "no strong evidence of impermissible hostility and animus?"

    4. What does expelling an alien have to do with incarceration of a citizen? Shooting aliens on the spot? What are you talking about?

      Because citizens were involved in Korematsu, the detrimental to interests language would never have survived. Different standards of scrutiny are applied.

      Immigration law is not about the honor of Fred Korematsu. Sorry. It's about what was plainly written and how it is applied. Aliens have less rights. Get denied a visa at an Embassy? Too bad.

      The EO had a rational basis and no one's rights are being violated. There are a ton of loopholes for appropriate cases. If Obama had done the same policy, would these voices have been raised?

    5. What again?

      Do I have to solve all your problems by simply applying Australian administrative practice and jurisprudence history about thorny issues like immigration?

      Okay here goes.

      From 1901 right up until the fifties Australia successfully applied what has become known to history as the White Australia Policy.

      One minor obstacle was that the immigration restriction legistration that prevailed never used like "white" or "race".

      Apparently that was considered unseemly even in 1901 and was unnecessary anyway.

      It included what was called a "dictation test". This allowed immigration officials to administer a test that required that anyone seeking entry could be required to write down a passage of fifty words in any "European language ". Like all good policy it continued to apply infinitely including to those
      who managed to illegally penetrate the nation's watery but porous borders.

      One landmark achievement was in 1915 when it allowed the deportation of a Japanese fisherman who had lived in the country for more than a decade but couldn't take down 50 words in Greek read by a local Greek restaurant owner who had been seconded especially for the case.

      Before you knew it our poor but honest fisherman was on the next slow boat to Tokyo Bay.

      But it's really outstanding achievement came in the 1930's in what became known as the Kirsche affair.

    6. Sar,
      You never answered my question as to whether it was legal for President Carter to revoke the visas en masse of Iranian students in 1979.

    7. I don't know about that case.

  12. With all your quotes from the Koran, how do you explain the head of Nahdlatul Ulama, the world's largest Islamic organization, visiting Israel to address the American Jewish Committee?

  13. Ive just checked the spelling. Kisch.

    Kisch was Czech, "white" and European fluent in several European languages. He was also Jewish and a communist who was therefore considered undesirable by the standards of the day
    who made a famous entry when he jumped
    from a passenger ship in harbour to the dock in front of a large audience and broke his leg. The resonance with another leap by a famous ham in American history is astonishing.

    Anyway Kisch was carted off to hospital
    or wherever and was asked to take down 50 words I think were from the Christian bible.

  14. The passage was in Spanish Gaelic.

    You do have to admire the genius of this, don't you? It would have had Milo Minderbender spinning with envy.

  15. Kishe was trying to gain entry to address a few anti-fascist mass rallies organized by the far left. So I guess he was "prematurely anti-fascist" before the pacifist phase, Orwell tagged "objectively pro-fascist" .

    So there you have it.

    Introduce a "dictation test".

    It needn't be in only an European language. Any language will do.

    Problem solved.

  16. "Penetrate"? "Infiltrate"? Seeking "asylum"?

    Where is George Orwell when you need him.

    1. Dead. But you can still read his books.

    2. I'm aware of that. TB, from memory, that he probably contracted in Barcelona during the civil war or while tramping in Paris or London. Penicillin was still rationed and came too late to save him.

      And yes. I have read every word that has been published including novels, memoirs, diaries, letters, essays and journalism.

    3. Sorry Geofff, I wasn't suggesting you hadn't read Orwell. I should have said, "one can still read his books." My point was that people should read him.