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November 03, 2014


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David Bernstein

Eric, I share your confidence that Hirabayashi is disfavored, but I also think that if an equivalent situation arose today the case would still be something like 9-0 for the government. The good news is that no minority in the U.S. is treated the way the Japanese were at the time, so no equivalent situation could arise (i.e., the majority opinion in Hirabayashi pointed out that the Japanese had been treated atrociously by Americans, and therefore it wouldn't be surprising if some of them resented their treatment enough to sympathize with the "wrong side" of the war). Nor is the U.S. likely to face the sort of mortal threat it seemed to be facing in the early '40s. Plus it's hard to imagine any president with the popularity and authority of wartime FDR. But I don't think we should kid ourselves that the Supreme Court would come to the rescue today under similar circumstances. Heck, compare Hamdi (popular president, threat seems very real and imminent after 9/11) to Bouemediene (unpopular president, threat has receded) to see that outside factors play more of a role in how willing courts are to challenge president's national security initiatives than does doctrine.

Eric Muller

Really, David? Let's say that a couple of American citizens of Syrian ancestry, both Muslims, were to blow themselves up in shopping malls in different spots in the USA at around the same moment. And let's say that the President responded by ordering all people of Syrian ancestry in the United States, including American citizens, to stay in their homes and leave only with the permission of law enforcement. You really think that the Court would uphold the constitutionality of that order? And do so by a 9-0 vote?

Eric Muller

I meant to say that the President responded by ordering all Muslims of Syrian ancestry in the United States confined to their homes.

David Bernstein

Have Syrian people been denied citizenship, and of the right to own property? Is the president at the time receiving approval ratings of 90% +? Is there a real threat to the United States as an entity, as opposed to sporadic terrorism?

Let's say instead that a very popular president gets a very credible threat that Islamist terrorists had an atomic device and were going to explode it in a major American city. One Friday morning, the FBI sweeps mosques known to have radical imam, arrests all the occupants, and proceeds to question them without warrant or counsel present, and plans to hold all the individuals until either they have been cleared of any possible involvement or the threat has been neutralized. I don't think you'd have an easy time finding five votes to get everyone released immediately and unconditionally. Do you?

My point is that the precise situation of Korematsu and Hirabayashi won't recur, but in some other, new emergency circumstance, the Court will still defer to the president. The big difference, I think, is that having been burned in K and H by trusting the government when the government wasn't being truthful, the Justices would likely demand much greater proof, including looking at classified documents, before deferring.

David Bernstein

So, I guess that means I disagree with Thomas; I don't think there will be great deference to the president's claim of a real national security emergency. I do think once the emergency is shown, there will be significant deference to how the president handles that emergency. Compare Youngstown, where there was no real emergency, so there was no deference.


THe movie, "The Siege" explored these issues before 2001.

The plot was very prescient and answers to many of the questions here were posed, using a likely scenario, though the ending, of course, was pure fiction (a hero arose to defy authority and vindicate human rights).


I was always of the opinion that Justice Thomas cited Hirabayashi and Korematsu to troll law professors. And this discussion, which has gone on for over two weeks across three blogs, has certainly confirmed that belief.

Eric Muller

So very sorry, Guest, for forcing you to read the results of Justice Thomas's trolling.


Why was my comment removed? IMHO, it was an accurate statement of what Thomas' view would mean if it were the majority view.



I apologize; I was on the wrong thread.

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