At Balkinization on Tuesday, Joseph Fishkin puzzled through the question of whether and how President Trump's 2017 exclusion order (forbidding certain non-citizen, non-resident-alien travelers from certain listed countries from entering the United States) can be distinguished from General John DeWitt's 1942 presidentially-authorized exclusion orders (ordering all resident aliens and US citizens of Japanese ancestry to leave the West Coast of the United States for points eastward). Important question; interesting post.
Fishkin identifies (and rejects) four possible ways of distinguishing the orders from each other:
- war power (1942) vs. immigration power (2017);
- moving people around within the United States (1942) vs. keeping people out of the United States (2017);
- targeting citizens (1942) vs. targeting aliens (2017); and
- facial race-specificity (1942) vs. facial neutrality (2017).
I think there's more to be said for the third distinction than Fishkin allows.
Here's his thinking on this point:
Third, I suppose one could argue it’s one thing to act in a racially motivated way toward non-citizen immigrants, but different and much worse to do it to citizens. This doesn't get us very far, however. Imagine that the Japanese internment program had applied exclusively to non-citizens—suppose it were framed as a change in immigration status, revoking permission to be in the country and therefore assigning such immigrants to internment/detention camps. Would that turn a “morally repugnant” action, the upholding of which “has no place in law under the Constitution,” into something perfectly constitutional? Nobody would argue this. It is just not plausible to imagine that the only problem with Japanese internment was when the policy was applied to the small number of Japanese-Americans who our law allowed to become citizens (basically, children born in the U.S.—others were barred from naturalizing). This cannot be the reason why Korematsu has “nothing to do with” the travel ban case.
It's worth noting, as a point of historical interest, that in 1942, the distinction Fishkin rejects made sense to Japanese Americans themselves. One can find many statements in oral histories and memoirs of the Nisei (second-generation US-citizen children of immigrants) to the effect that they expected action against their Issei (first-generation immigrant) parents in the wake of Pearl Harbor but thought their US citizenship would protect them.
There was a legal basis for this supposition. Once we declared war on Japan, the Issei became enemy aliens within the meaning of the 1798 Alien Enemies Act. This meant they were "liable to be apprehended, restrained, secured and removed"; the Act gave the president the power "to direct the conduct to be observed, on the part of the United States, towards the aliens who shall become liable, as aforesaid; the manner and degree of the restraint to which they shall be subject, and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those, who, not being permitted to reside within the United States, shall refuse or neglect to depart therefrom."
So it's not clear to me that "nobody would argue" that an order removing the Issei from the West Coast was constitutional; a statute dating from the decade within which the Constitution was ratified authorized just that.
(To be clear: this is not what FDR actually did. Executive Order 9066 did not cite the Alien Enemies Act as a basis for action against the Issei. The government did in fact invoke the Alien Enemies Act as to a small fraction of the Issei population of the West Coast in the couple of months after Pearl Harbor, arresting some 2000 of them and taking them for detention to Justice Department internment camps alongside a sizable number of German aliens and a very small number of Italian aliens. Those aliens received rudimentary due process under regulations promulgated to implement the Alien Enemies Act -- individualized suspicion as a basis for arrest, and some semblance of a hearing. The Issei who ended up in the ten War-Relocation-Authority-administered camps received none of those protections.)
The more important point, though, is that the best indication that the action taken against people of Japanese ancestry in 1942 was in fact racially (as opposed to nationally) based was that it did not distinguish between aliens and citizens. Fishkin says it "doesn't get us very far" to "argue it’s one thing to act in a racially motivated way toward non-citizen immigrants, but different and much worse to do it to citizens." I think that gets us quite far, actually, because if General DeWitt's orders had directed action only against the Issei and had left the Nisei alone, it would have been much, much harder to argue that the order was in fact racially motivated.
The argument to establish racial motivation would instead have had to point out that the government was excluding all Japanese nationals from the West Coast while excluding German and Italian nationals from the coasts on a case-by-case basis. That would certainly have been suggestive of racial animus, but nowhere near as conclusive as the actual sweep of EO 9066 across the alien/citizen boundary.
Fishkin maintains that "it is just not plausible to imagine that the only problem with Japanese internment was when the policy was applied to the small number of Japanese-Americans who our law allowed to become citizens (basically, children born in the U.S.—others were barred from naturalizing)." There's a factual error here; the number of citizens affected was not small. In fact, two-thirds of the roughly 120,000 of people affected were US citizens. But more importantly, while I agree that it's not plausible to argue that "the only problem with the mass removal of people of Japanese ancestry was that it applied to citizens, I do believe that the application to citizens was a major component of what was wrong with General DeWitt's orders -- and with the Korematsu opinion that upheld them against constitutional challenge.
From my vantage point, the reason Trump v. Hawaii replicates the error of Korematsu does not emerge from a comparison of Trump's order to DeWitt's. It emerges from a recognition of the naive credulity in the two majority opinions' view of the basis for executive action.
In the Korematsu (and Hirabayashi) litigation, the Justice Department went to some lengths to minimize, and even conceal, proof of invidious motivation; that's what got those convictions overturned in the coram nobis cases of the early 1980s. In the travel ban case, evidence of invidious motivation littered the record. In both cases, the Court's majority chose to credit the executive's depiction of the neutral basis for its actions. That was a grievous error in Korematsu (as the Roberts and Murphy opinions pointed out), although it was in some small sense understandable due to the government's concealments. In the travel ban case, it's an equally grievous error, and not even remotely understandable because the evidence of bad intent was all around them.
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