U.S. again nears edge of ‘the abyss of racism’
The Supreme Court has agreed to review the constitutionality of President Donald Trump’s second executive order imposing a travel ban on nationals from six-majority Muslim nations. In doing so, they would do well to keep in mind a shameful incident in which the court approved executive orders that took this country over the brink, descending into what a dissenting justice called the “ugly abyss of racism.”
During the campaign Trump pledged that he would enact a “Muslim ban” if he got into office. He later told his advisers to accomplish this in whatever way could escape the court’s review. When his first executive order hit judicial snags he reissued a slightly different second one, which is what the Supreme Court will consider.
President Trump’s lawyers want the court to ignore his campaign comments. That reminds me of a time when a president wanted to suppress evidence and the justices were happy to accommodate. That flight from the facts occurred in Hirabayashi, a 1943 decision that led to the more well-known Korematsu decision of 1944. These cases upheld the internment of JapaneseAmericans during World War II.
After the attack on Pearl Harbor, the FBI arrested more than 2,000 Japanese resident aliens whose names they had compiled on a list. After a hasty investigation that falsely blamed espionage in Hawaii for Pearl Harbor, a plan was put into place for large-scale evacuation of Japanese-Americans from the West Coast, regardless of their individual conduct, background or citizenship.
President Franklin Roosevelt issued Executive Order No. 9066, which gave military commanders the right to designate exclusion zones. Congress then passed a law that made it a federal crime to disobey the military orders. “Excluded” Japanese-Americans were subject to a curfew and forced to gather in relocation centers from which they were sent to internment camps. More than 120,000 “Japanese” (including American citizens) were interned. Some German and ItalianAmerican families also were interned in camps, like the one in Crystal City, Texas. For reasons both practical and racial, however, most were exempted from the final stage — relocation and internment — of the government’s enemy alien regulation program.
The Supreme Court upheld the convictions of three Japanese-American defendants who refused to comply with parts of the orders. In his dissent to Korematsu, Justice Frank Murphy said the “exclusion of ‘all persons of Japanese ancestry, both alien and non-alien,’ from the Pacific Coast area on a plea of military necessity in the absence of martial law” overshot “the very brink of constitutional power” to fall into “the ugly abyss of racism.”
The internment cases have lessons for the Supreme Court about evidence of racial or religious animus. When the Hirabayashi case was scheduled to be argued before the Supreme Court, the government’s case had holes in it. The general in charge had written a final report in 1942 that contained the official rationale for the exclusion and internment scheme. The general claimed that he ordered a wholesale exclusion of all Japanese-Americans because their racial characteristics meant that it was impossible to distinguish loyal from disloyal members of the community. ( Just as President Trump is now claiming that it is impossible to distinguish a terrorist from a non-terrorist Muslim.) The government therefore decided to suppress the embarrassing report. A high government official ordered the copies confiscated and destroyed. He also required the general to produce a revised version incorporating the still highly questionable position that the blanket orders were necessary because there was no time for individualized loyalty hearings.
Today, we see another executive order going up for review by the Supreme Court, alleged to be animated by the same type of unlawful bias, but against a specific religious group. The Trump Administration has produced no supporting evidence for its current order. Now it wants to revise its own reasoning retrospectively and have the court ignore evidence of animus toward Muslims that already is on the record. It is for that fact that the Supreme Court should pay attention to the errors of its past. To echo the words of a dissenting Supreme Court justice back then, the country today once again stands on the brink of falling into “the ugly abyss of racism” and religious intolerance.