At SCOTUSblog, Lyle Denniston has an interesting post on an effort by lawyers who represented Fred Korematsu and other victims of the internment of Japanese-Americans during World War II to persuade the Obama administration to advocate the overruling of Korematsu v. United States, the notorious 1944 Supreme Court decision that upheld the forcible internment of over 100,000 Japanese-Americans during World War II [HT: GMU law student Rebecca Bucchieri]:
Lawyers who worked for years — ultimately successfully — to clear the names of U.S. citizens of Japanese ancestry who were convicted of violating government detention policy during World War II are trying to persuade the Obama administration to join in wiping off the books the Supreme Court rulings of that time, upholding those detentions. The most famous of those rulings – often reviled – was the 1944 decision in Korematsu v. United States.
The lawyers did so in a letter last week to U.S. Solicitor General Donald B. Verrilli, Jr., attempting to shape the government’s response to a new Supreme Court appeal that attacks the Korematsu decision. They want the government to formally repudiate that precedent, and tell the Court that it is no part of the justification today for detention of U.S. citizens during the war on terrorism.
The new case is Hedges v. Obama (docket 13-758), an attempt to revive a constitutional challenge to Congress’s recent support of presidential power to detain suspected terrorists….
While Congress was debating that measure, a controversy arose over how far it would go, if at all, to permit the detention without trial of U.S. citizens captured inside the U.S. In a compromise effort to resolve that dispute, Congress included a statement that now seems ambiguous about what was intended. In the Hedges case, the claim is that the statement can be read to rely upon the Korematsu decision as support for such detentions — something that those challengers want to have clearly refuted.
Here is the language of the compromise provision: “Authorities. — Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”
What concerns the challengers in the Hedges case, and the lawyers who wrote to the Solicitor General, is the phrase “existing law or authorities.” In the petition in the Supreme Court seeking review of the Second Circuit’s decision, this was included as one of the questions at issue: “To the extent that the Second Circuit opinion holds that Koremasu is among the ‘existing law and authorities’…that relate to military detention of citizens and legal residents, should Korematsu be overruled?”
Although Korematsu is one of the most widely reviled decisions in Supreme Court history, it has never been formally overruled, and therefore could potentially be included among the “existing law or authorities” referred to by the 2011 statute.
I discussed the case for overruling or repudiating Korematsu and the other WWII-era Japanese internment decisions in this post, where I also noted that such an overruling can potentially take several different possible forms. Overruling Korematsu would not necessarily deprive the president of all authority to detain suspected enemy combatants, spies, and terrorists without trial. What made that decision so egregious was not just that the Japanese-Americans were detained, but that the detention was undertaken purely on the basis of race without any individualized evidence of guilt, that it was on such a massive scale, and that it went on for over three years. In addition, there is extensive evidence that the internment decision was motivated at least as much by racism as by genuine security concerns. If all that isn’t enough to qualify as an unconstitutional abuse of wartime executive power, it’s difficult to imagine what is. We can legitimately debate the extent to which the executive should have the power to order less drastic forms of internment in wartime. But it is long past time for the Court to repudiate Korematsu.