An amicus curiae group filed a Supreme Court brief today supporting the challengers in the ongoing Muslim travel ban litigation (Trump v. Hawaii). The amici include the Fred T. Korematsu Center for Law and Equality (Korematsu Center), the children of litigants who challenged orders that led to the mass incarceration of Japanese Americans during World War II, civil rights organizations, and national bar associations of color. Oral argument will take place April 25, 2018.
The “Presidential Proclamation” at issue is the third iteration of the Trump administration’s travel ban, implementation of a campaign promise that courts have repeatedly blocked in its prior and current forms. The challengers assert that the Presidential Proclamation, like the Executive Orders it replaced, violates the Establishment Clause of the First Amendment as well as the Immigration and Nationality Act. The federal government argues that the court should defer wholly to the executive branch because the Presidential Proclamation concerns immigration and national security, and that courts have historically deferred to the executive branch on these issues.
In the brief filed today, the amicus group argues that the Supreme Court can and should meaningfully review the Presidential Proclamation for violation of the Constitution. The government’s insistence on deference to the Executive leans heavily on the “plenary power doctrine,” an outdated doctrine resting on a string of 19th-century cases infected with racist and xenophobic prejudices. The government used similar arguments during World War II in defense of Executive Order 9066, which authorized military orders that led to the mass Japanese American incarceration.
In three wartime cases—Hirabayashi, Yasui, and Korematsu—the Supreme Court chose to defer to the President and the military in times of war, abdicating its role of asking probing questions and allowing the targeting of a group based on their national origin and race, rather than on individual determinations of guilt or innocence. The Ninth Circuit and Fourth Circuit Courts of Appeals demonstrated their understanding of this tragic history lesson when they rejected the government’s arguments in defense of both the earlier travel ban Executive Orders and this most recent Proclamation. The Supreme Court should do the same.
The brief argues that “Hirabayashi, Yasui, and Korematsu are powerful reminders not only of the need for constant vigilance in protecting our fundamental values, but also of the essential role of the courts as a check on abuses of government power, especially during times of national and international stress.” The brief reminds the Court that the World War II convictions were vacated in the 1980s (the coram nobis cases), following the discovery of secret intelligence reports from the Navy, FBI, and the FCC which categorically denied that Japanese Americans had committed any wrong or posed any threat.
Other Justice Department memoranda characterized the Army’s claims that Japanese Americans were spying as “intentional falsehoods.” These documents revealed that the government’s claim of “military urgency” was a smokescreen and that the government knew in 1942 that its own intelligence contradicted the rationale that the mass removal and incarceration program was necessitated by national security. This evidence was never presented to the Court, having been intentionally suppressed, and instead, the government defended its policies with racist generalizations about Japanese Americans. Years later, the Acting Solicitor General issued an extraordinary “confession of error” acknowledging the government’s role in the miscarriage of justice in those cases.
With respect to the filing, Professor Robert S. Chang, executive director of the Korematsu Center, said, “When Gordon Hirabayashi, Minori Yasui and Fred Korematsu stood before the Supreme Court to defend the fundamental freedoms of our democracy, they did so largely alone. Today, I’m proud to stand with Jay Hirabayashi, Holly Yasui and Karen Korematsu and this coalition of civil rights organizations and bar associations of color, representing thousands of lawyers—together, these amici ensure that the victims of this Presidential Proclamation do not have to defend their rights alone, but rather do so with the backing of these amici and countless others who recognize the importance of this litigation.”
Lead pro bono counsel, Pratik Shah of Akin Gump Strauss Hauer & Feld LLP, said, “This Court should reject the government’s invitation to abdicate its role in our constitutional system and should subject the President’s exclusion decision to meaningful judicial scrutiny—lest history repeat itself, as Justice Jackson’s prophetic dissent warned in Korematsu.”
The individuals and organizations joining the amicus brief today are: the Fred T. Korematsu Center for Law and Equality at Seattle University School of Law, Karen Korematsu, Jay Hirabayashi, Holly Yasui, Asian Americans Advancing Justice | AAJC, the Asian American Legal Defense and Education Fund (AALDEF), the Hispanic National Bar Association (HNBA), Japanese American Citizens League of Hawaii, Honolulu Chapter (JACL Honolulu), LatinoJustice PRLDEF, Inc., the National Bar Association, and the South Asian Bar Association of North America (SABA North America).
Pro bono counsel on the brief are: Robert S. Chang and Lorraine K. Bannai of the Fred T. Korematsu Center for Law and Equality; Eric K. Yamamoto, the Fred T. Korematsu Professor of Law and Social Justice at the William S. Richardson School of Law at the University of Hawaii; Robert L. Rusky, Donald K. Tamaki, Dale Minami, Peter Irons, Leigh-Ann K. Miyasato, and Rodney L. Kawakami, counsel in the coram nobis cases; as well as attorneys from Akin Gump Strauss Hauer & Feld LLP, including Pratik Shah, co-head of Akin Gump’s Supreme Court and Appellate practice, Robert Johnson, Alice Hsu, Martine Cicconi, Jessica Weisel, Elizabeth Rosen, Daniella Roseman, and Nathaniel Botwinick.