Supreme Court Review

Article Title

Trump v Hawaii: "This President" and the National Security Constitution.



When Justice Sonia Sotomayor analogized the majority opinion in Trump v Hawaii to Korematsu v United States, Chief Justice John Roberts got his back up: “Korematsu has nothing to do with this case.”Why? Korematsu involved “[t]he forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race. …”That’s an accurate description of the case, but what makes it different in principle from the travel ban upheld in Trump v Hawaii? According to the Chief Justice, the Japanese exclusion orders upheld in Korematsu, unlike the travel ban, were “objectively unlawful”—an odd phrase. The Chief Justice continued, “it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.” The action “is well within executive authority”—again, nothing more than a restatement of the Court’s holding—and “could have been taken by any other President …” (emphasis added). Putting aside the conclusory language, we can see several themes in the Chief Justice’s defense of the Court’s decision. The first is what I will call, echoing the Chief Justice’s language, a distinction between “this President” and “the Presidency.”The second is that facial neutrality operates as an absolute screen to shield badly motivated actions from anything but the most minimal scrutiny. That is dramatically at odds with the way facial neutrality has operated in other cases, where facially neutral statutes can be invalidated if they result from discriminatory animus. The third theme, then, attempts to explain and limit this apparent departure from settled principles by suggesting several implicit differences between the travel ban and the orders in Korematsu. (a) The Korematsu orders operated within U.S. borders, whereas the travel ban operated outside those borders. (b) The Korematsu orders affected U.S. citizens, whereas the travel ban affected (only) “certain foreign nationals.” (c) And, with respect to those foreign nationals, the ban dealt only with “the privilege of admission.”

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