//  3/22/17  //  Commentary

A curious argument has become fashionable in certain circles. The argument is about President Trump’s travel bans, and goes something like this: when a court evaluates the legality of these bans, what is required is a sort of studied judicial credulity. All a court can consider is the Administration’s rationale for the ban as stated in (1) the ban itself, and (2) its briefs. The district courts in Hawaii, Maryland, and Virginia, as well as the Ninth Circuit Court of Appeals, on this view, all committed a major mistake by looking at surrounding evidence regarding (especially) the anti-Muslim animus that motivated both bans.

Judge Bybee, for example, argued in his dissent from the denial of rehearing en banc in Washington v. Trump that even “if we have questions about the basis for the President’s ultimate findings,” courts cannot “peek behind the curtain” (even to determine, he says explicitly, if it is a “‘Muslim ban’ or something else”). Judge Kozinski, in his dissent from denial of rehearing en banc, said that he was aware of “no case anywhere” that swept “so widely in probing politicians for unconstitutional motives.” And Jeff Toobin, writing at the New Yorker, called the evaluation of Trump’s campaign “utterances” “pretty dubious,” especially on “matters of national security.”

Let’s call this the “no peeking” view. On the merits, this view is wrong, as others have argued. The Supreme Court has explicitly rejected the idea that a challenge under the First Amendment’s religion clauses must focus exclusively on “the text of the laws at issue,” because “facial neutrality is not dispositive.” There are “many ways of demonstrating that the object or purpose of a law is the suppression of religion or religious conduct,” and courts must “survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders.” That includes “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body.”

But forget all of that. What’s interesting about this curious new argument is how vividly it evokes another case from our history, also involving a constitutional challenge to a national-security executive order, where the courts were also urged to accept the executive’s national-security rationale at face value, without considering whether the executive’s stated national-security purpose made any sense or was the real motivation for the order. The difference is that in that case, the court gave the government what it wanted and upheld the order.

That case, however, is also regarded as one of the greatest blunders in American legal history. In Korematsu v. United States, the Supreme Court upheld the conviction of an American citizen of Japanese descent for violating an exclusion order that required him to stay in an internment camp. That decision is a leading candidate for any list of entries in what Richard Primus once called “the anti-canon.” Jamal Greene included the decision in his piece describing the content of “the anti-canon.” And Justice Scalia once said that a dissent in the case was the past Court opinion he admired most.

But the Court did not get it wrong without help. As it turns out, blind trust in the government can be dangerous because the government does not always tell the truth. In 2011, the United States filed a formal “admission of error” acknowledging that the government had misled the Court in Korematsu. By the time of the Supreme Court case, the Solicitor General knew that a key intelligence report undermined the government’s stated rationale for the racial discrimination, but concealed it (despite warnings from inside the Department of Justice that this might constitute “the suppression of evidence”). Other stated justifications for the law had also been internally discredited by the FBI.

None of this was shared with the Court, which was blithely urged to just take the government at its word. And that the Court did. The Korematsu majority, having been fed garbage by the United States, reasoned that it had no choice but to eat it. Internment was “deemed necessary because of the presence of an unascertained number of disloyal members of the group,” and the Court “could not reject” this finding of “the military authorities.” Case closed: to “cast this case into outlines of racial prejudice … merely confuses the issue.”

As it turns out, though, one Justice was willing to look behind the curtain—to do, in other words, what the judges evaluating Trump’s travel ban have been doing. Justice Murphy’s dissent did not dispute that the scope of the President’s discretion “must, as a matter of necessity and common sense be wide.”  Nor did he question that the executive’s judgment “ought not to be overruled lightly … by those whose training and duties ill-equip them to deal intelligently with matters so vital to the physical security of the nation.”  Rather, he rightly insisted that principles of general deference to the executive do not mean that “individuals” are “left impoverished of their constitutional rights [based] on a plea of military necessity that has neither substance nor support.”

Murphy’s dissent reasoned that the justification for the exclusion rested mainly upon “questionable racial and sociological grounds not ordinarily within the realm of expert military judgment,” supplemented by what he called semi-military conclusions drawn from an unwarranted use of circumstantial evidence.” (In other words: hand-waving.) For example, he noted that the government had argued that Japanese-Americans were given to “emperor worshipping ceremonies.”

But the real motivations for these conclusions, Murphy could see, were not expert military judgments but naked racism. And he was able to arrive at this conclusion by doing just what the no-peeking view objects to: looking behind the curtain of the proffered rationale for the exclusion order to see where it came from.

For example, Murphy quoted J. L. DeWitt (the commanding general responsible for Japanese evacuation of the West Coast) making statements that are… well, see for yourself. In testimony before the House of Representatives in April 1943, DeWitt stated plainly: “I don’t want any of them here.” (Sound familiar?) “There is no way to determine their loyalty,” DeWitt went on. (Should have tried “extreme vetting!”)  And DeWitt warned that the “danger of the Japanese” was “espionage and sabotage.” (Then-candidate Trump similarly warned of “horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life.”) All of this, in Murphy’s account, was offered as “evidence of the Commanding General’s attitude toward individuals of Japanese ancestry.” (Emphasis ours.) The first eight or so footnotes of Murphy’s dissent are full of stuff like this.

We are sure that distinguished jurists like Judges Kozinski and Bybee, as well as seasoned legal analysts like Toobin, would agree that Murphy had the better of the argument in Korematsu. But if so, why not here? To be sure, Murphy’s analysis was based on testimony and other official government reports. But the sorts of documents featured in the travel-ban litigation (like  the President’s regularly updated campaign website, which still contains Trump’s promise of “a total and complete shutdown of Muslims entering the United States”) are no less authentic—no one doubts, in other words, that Trump really said those things.

And while Judge Kozinski argues that courts should restrict themselves to “activities undertaken while crafting an official policy,” much of Murphy’s source material was written after the exclusion order was enacted. At any rate, a candidate’s pre-election statements are surely connected to the administration’s “crafting [of] an official policy.” Just ask the President, who has repeatedly cited his pre-election statements to explain and defend his “official policy” plans. For example, when asked whether he still planned to ban Muslims from entering the United States, Trump responded “you know my plans all along”—and who can disagree?

More to the point, what if, in Korematsu, President Roosevelt and his generals had published a blog post or an op-ed that stated “we have decided to quarantine Americans of Japanese descent because they are ‘a large, unassimilated, tightly knit racial group’ who frequently have ‘emperor worshipping ceremonies’”?  Would the no-peekers say the order excluding American citizens would be constitutional then, since courts could not consider that evidence?  Would Toobin still agree that the order “is either constitutional or it’s not—and [the President]’s words don’t settle that question one way or the other”? We can’t imagine they would stick to those guns.

In many ways, the travel-ban litigation is the easy case, because the statements of motive are staring everyone in the face—plastered on the candidate’s website; mentioned frequently in Trump’s own statements, as well as statements made by his subordinates; and otherwise in the public record. This isn’t a case, in other words, where a litigant asks for permission to go looking for evidence that doesn’t yet exist (or that the litigant doesn’t yet have) of a discriminatory motive. This time, we don’t need a classified intelligence report. All we need to do is notice reality, just as the courts have been doing. Keep that up, and we might just avoid another entry in the anti-canon.

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Charlie Gerstein

Civil Rights Corps

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