From the Executive Director: Korematsu Repeal Repeats the Same Mistake

By David Inoue, JACL Executive Director

[dropcap]I[/dropcap]t should have been a time of celebration. In the Supreme Court’s majority decision, Chief Justice John Roberts emphatically stated, “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.” Chief Justice Roberts closed his argument with “The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history and — to be clear — ‘has no place in law under the Constitution.’ 323 U.S., at 248 (Jackson, J., dissenting).”

With official apologies from Congress and the Executive Branch, the Supreme Court had been the lone remaining branch of our three-part system of government that had not formally apologized. It seems we have their apology and the overturning of the Korematsu decision, but the reality is that the court has replaced Korematsu with a similarly flawed legal decision.

Chief Justice Roberts justifies the Muslim ban as different from Korematsu, “But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission. See post, at 26–28.”

As JACL noted in its statement following the decision, the key words here are “facially neutral.” Executive Order 9066 was also “facially neutral,” but the basis for its creation was rooted in the decades of racism against Asian immigrants and specifically Japanese immigrants and Japanese Americans. These included policies blocking or reducing immigration, preventing the ownership of land and, of course, Japanese could not naturalize as citizens. Justice Sonia Sotomayor’s dissent drew from both the JACL and Korematsu briefs as she argued the parallels between Korematsu and the Muslim ban and the discriminatory foundations of the ban.

Anti-immigrant sentiment is nothing new to our country. From our beginning, the Alien and Sedition Act of 1798 laid the groundwork for many of today’s policies. These policies are carried out today not only with the Muslim ban, but also in the criminalization of asylum seekers at our borders.

We see it also in the efforts to strip naturalized citizens of their citizenship and withdrawing the promise of citizenship for immigrants serving in our military. The dehumanization that Japanese Americans faced in the past continues today as we separate children from their parents seemingly without a second thought, or any intent to bring them back together.

JACL successfully fought for changes to our country’s immigration policy in 1952 and 1965, which enabled Japanese immigrants to become citizens and establish that immigrants not be discriminated based on ethnicity, national origin and other similar characteristics.

As Japanese Americans, we cannot forget the injustices that we experienced and allow them to be continued today. The targets may be different, but the underlying racism and bigotry remain the same.

The first line of Executive Order 9066 opens, “Whereas the successful prosecution of the war requires every possible protection.” The unchecked power of the executive branch enabling “every possible protection” is what allowed the Japanese American incarceration.

In applying excessive deference to presidential power in the name of an unevidenced national security threat and ignoring clear evidence of discriminatory motivation, the Supreme Court has reaffirmed Executive Order 9066 as 13769 and perfectly replaced an overturned Korematsu decision with the Muslim ban.