During an appearance on Megyn Kelly’s Fox News show, Carl Higbie said a registry proposal being discussed by Trump’s immigration advisers would be legal and would “hold constitutional muster.”
“We’ve done it with Iran back awhile ago. We did it during World War II with the Japanese,” said Higbie, a former Navy SEAL and until Nov. 9, the spokesman for the pro-Trump Great America PAC.
This is lunacy of the worst order, and yet another reason why we shouldn’t look to Navy SEALs to explain law. They’re great at killing Osama, but really lousy at constitutional interpretation.
“Come on, you’re not proposing we go back to the days of internment camps, I hope,” she said.
“I’m not proposing that at all,” Higbie told her. “But I’m just saying there is precedent for it.”
He’s talking about Korematsu, one of a handful of appallingly disgraceful Supreme Court decisions that seemed undisgraceful at the time, because we’re a nation prone to hysteria. It reflected a maxim, Inter arma enim silent leges, in times of war, the laws fall silent. And the decision has never been reversed.
The Bill of Rights was written precisely to protect individuals against governmental abuses of power like this. And yet, in 1944, the Supreme Court upheld the order’s constitutionality. Writing for the majority in Korematsu v. United States, Justice Hugo Black said Americans of Japanese descent were incarcerated “because we are at war with the Japanese empire,” not because of racial “hostility.” But that was obviously untrue, as Justice Black suggested in an interview decades later, saying that “people were rightly fearful of the Japanese” because to non-Japanese people “they all look alike.”
Today the Korematsu decision is widely regarded as one of the court’s most shameful. But it has never been overturned because the issue hasn’t come up again.
Korematsu is up there on the list of insanely bad Supreme Court decisions, alongside Plessy v. Ferguson and Buck v. Bell. But, as the Times correctly notes, it has never been reversed. It should be, but there is a constitutional requirement of a “case and controversy,” meaning that the Supremes can’t just issue an order saying, “you know that decision we wrote in 1944? Well, it was awful and so we reverse it.”
But can it rear its ugly head again? Of course it can. This is America, the land of Hysteria!
On Korematsu, Scalia unequivocally stated that the ruling was “wrong,” thereby differing with the small but noteworthy group of conservatives who have defended the decision in recent years, such as Judge Richard Posner and columnist Michelle Malkin. But he also predicted that a similar internment might be upheld in the future:
“But you are kidding yourself if you think the same thing will not happen again,” he said.
He used a Latin expression to explain why. “Inter arma enim silent leges … In times of war, the laws fall silent.”
If you dig behind what Scalia was saying, you realize there are two forces at play, neither of which is anything but a mindless visceral reaction to external stimuli that gives rise to transitory insanity and decisions like Korematsu. The ability to whip up irrational fears and get tons of angry and frightened people to lose their shit and demand whatever solution seems like a good idea at the moment, or support the imposition of flagrantly unconstitutional actions because “this is different,” is as American as mom and apple pie.
Of course Korematsu should have been reversed during the hiatus of sanity between World War II (when we called the Japanese “nips,” the Germans “krauts,” and millions of people were brutally killed) and 9/11, which changed everything again. But there was no case to do so. Somehow, American managed not to put anybody in internment camps behind barbed wire. Except maybe in Guantanamo, where they were tortured and held forever despite not having been snatched from their beds by mistake.
Thing is, there are a lot of cases you can cite if you are looking to support judicial deference to Congress. There is scholarship supporting judicial deference. When you bring up Korematsu, you’re not doing it to make a law nerd point about executive orders imposed upon the homeland during battle.
As we learned from John Yoo, our national apologist for torture in the Department of Justice, Office of Legal Counsel, who landed a cool position as a law professor at
Boalt Hall Berkeley, wrap up the worst of human emotions in gibberish and the law can justify almost anything. But didn’t we all agree that Korematsu was, well, too wrong and outrageous to ever consider again?
Korematsu is still good law, because 65% of white men and 53% of white women agree with its principle that America means white people… and that the government can do whatever it likes to non-white people in order to keep it that way.
Apparently not. This isn’t merely insanely absurd, but what might be best characterized as “reverse Korematsu,” the irrational fear of people to whom one attributes unfounded evil and a need for remediation. Maybe a nice re-education camp?
The point is that war hysteria gave us Korematsu, a blight on our nation and the law, and that it’s raised again reflects our devolution into idiotic visceral reactions. Elie is right that nobody would bring up this precedent who wasn’t too dangerous to be allowed anywhere near power.
At the same time, the hysteria giving rise to Higbie the SEAL, even thinking to mention it isn’t any different than the hysteria that responds to it. Hysteria makes people do and say horrible and stupid things. The solution to hysteria isn’t to be more hysterical, but for the grown-ups in the room to calm things down, promote reasonableness and thoughtfulness rather than fear and loathing. For which the hysterical will hate the grown-ups for not validating their wildest feelings, but that can’t be helped. No good deed goes unpunished.
No, it’s inexcusable for anyone to raise Korematsu as a precedent, as the basis for doing something in America. Ever. No, America doesn’t agree with it. No, the Supreme Court didn’t fail to reverse it just to make sure we always had a way “to do whatever [white America] likes to non-white people.” And it’s time for reasonable people to stop being hysterical about everything.
*I’m not sure that Elie likes me anymore.