Korematsu’s Demise?

This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.

There’s a lot that’s remarkable about last Tuesday’s Third Circuit decision in Hassan v. City of New York, which Faiza Patel cogently summarized in her post last week. In a nutshell, Hassan involves a challenge to secret intelligence operations carried out by the New York Police Department (NYPD) over the years since September 11 that allegedly targets Muslim communities “based on the false and stigmatizing premise that Muslim religious identity ‘is a permissible proxy for criminality, and that Muslim individuals, businesses, and institutions can therefore be subject to pervasive surveillance not visited upon individuals, businesses, and institutions of any other religious faith or the public at large.'” The district court had tersely granted the City’s motion to dismiss both because it concluded the plaintiffs lacked standing and because, in the alternative, it held that the plaintiffs had failed to overcome the pleading burden articulated by the Supreme Court in Iqbal. But the Third Circuit reversed on both fronts, holding that the plaintiffs’ allegations, if true, were more than enough to establish both that they had suffered an injury in fact sufficient to satisfy Article III standing, and that their equal protection and First Amendment claims were sufficiently plausible to satisfy Iqbal. To be sure, the Third Circuit’s decision is interlocutory — coming at a very preliminary stage in the litigation. But what I want to suggest in the post that follows is that, as much as any other post-September 11 judicial decision, Hassan represents the full-throated repudiation of the Supreme Court’s infamous World War II-era ruling in Korematsu v. United States that has been so long in coming — and so thoroughly overdue.

I.  Korematsu‘s Shadow

As I’ve written about beforeKorematsu reflects two separate — but equally important — constitutional failures. The first failure was the internment policy itself, which we now know (and which the US government knew at the time) to have been a completely unnecessary — if not hysterical — overreaction to hyperbolic and (after Midway, at least) categorically overstated fears of a Japanese invasion of the West Coast. By itself, the camps were a dark stain on the history of civil liberties in the United States — albeit one of many, alas. But the second failure was, historically, the far more significant and unique one — the Supreme Court’s conscious constitutional rationalization of the internment policy, based upon a combination of naïveté on the Justices’ part and the affirmatively misleading (if not downright disingenuous) briefing by the federal government. As Justice Robert H. Jackson understood — and forcefully articulated — in his Korematsu dissent, the real violence to the “rule of law” resulting from the camps was thus not the underlying policy, but rather its validation by the Supreme Court. In his words, “a military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution.”

Over time, we have gradually come to accept the first of these two constitutional failures. The Non-Detention Act was enacted in 1971 largely to prevent future internment camps; the Civil Liberties Act of 1988 provided (modest) compensation to the victims of internment; and President George H.W. Bush formally apologized for the internment policy in 1989. Thanks largely to the work of the Commission on the Wartime Relocation and Internment of Civilians (CWRIC), no one today seriously defends the internment camps — or the notion that the government’s despicable actions toward all individuals of Japanese descent living on or near the West Coast were justified by the circumstances.

But we’ve struggled somewhat with the second constitutional failure. The courts have repudiated Korematsu’s conviction; the Office of the Solicitor General has confessed error for its role in perpetuating the government’s misleading case before the Supreme Court; and scholars have suggested that Korematsu itself has become part of the “anti-canon” — the class of Supreme Court decisions so reviled that they are cited, if at all, in support of the wrongness of their holdings. But Korematsu itself remains on the books, as do broader concerns that courts are still vulnerable to Korematsu — style reasoning, i.e., that the need to protect national security might provide legal justification for government conduct that would otherwise be unjustifiable. Indeed, one need look no further than the ongoing debate over the SSCI’s torture report for evidence of the Korematsu mentality being alive and well.

II.  Hassan and Korematsu

That’s why I find the Third Circuit’s analysis in Hassan so significant — not because it allows this particular civil suit to go forward, but because it does so based upon an explicit (and conscious) rejection of Korematsu — style legal reasoning. As Judge Ambro explains, “No matter how tempting it might be to do otherwise, we must apply the same rigorous standards even where national security is at stake. We have learned from experience that it is often where the asserted interest appears most compelling that we must be most vigilant in protecting constitutional rights.” And applying the strict judicial scrutiny that is triggered by government action deemed to be intentionally discriminatory on the basis of religious affiliation, the court proceeds to hold that the NYPD lacked a sufficiently compelling justification for such discriminatory treatment, because even if abstract claims of security necessity could be a compelling government interest, the NYPD’s alleged policy was far too overbroad to survive the narrow tailoring required by strict scrutiny. Thus, quoting directly from Justice Jackson’s Korematsu dissent, Judge Ambro closed his opinion by noting that “Our job is judicial. We ‘can apply only law, and must abide by the Constitution, or [we] cease to be civil courts and become instruments of [police] policy.'”

Faiza’s post provides far more detail on the specifics of the Third Circuit’s analysis, and the opinion itself is worth a read. For present purposes, though, it’s this mentality that I find so refreshing — that even when the government invokes the specter of September 11 and the need to prevent future acts of terrorism, courts will not abdicate their responsibility to scrutinize the government’s justifications with care, and to be especially wary of overbroad government programs carried out under the broad guise of “necessity.” Hassan certainly isn’t the first example of this kind of principled judicial decisionmaking in a post-September 11 counterterrorism suit, but it is the one that, at least in my view, most directly confronts — and rejects — the kind of deferential judicial review that was responsible for the second constitutional failure in Korematsu, and all of the pain that followed.

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In 1992, on the 15th anniversary of the opening of the internment camps, Fred Korematsu remarked that “[t]he constitutional violations that were committed have been cleared. This will never happen again.” If “this” is the mass, suspicionless detention of individuals based upon noting other than their national origin, then I think Korematsu was clearly correct. Even the US government’s deeply problematic post-September 11 roundup of Arab and/or Muslim immigrants had a superficially valid legal justification (if a wholly pretextual one), i.e., that the detainees were all subject to arrest on criminal and/or immigration charges. If “this” is the more subtle surveillance of particular racial, ethnic, or religious groups based upon generalized (and pernicious) stereotypes, then I’m afraid that, as Hassan underscores, the reaction to September 11 at both the local and national level suggests otherwise.

But if, as I’ve argued above, the “this” to which Korematsu was referring is the legal rationalization of such targeting, then the Third Circuit’s careful analysis — and forceful repudiation — of the NYPD’s justifications for such targeting are not only laudable in their own right, but they suggest that, in fact, Korematsu really is dead — and that judges, at the very least, have taken to heart the most painful lessons of the past seventy years, lessons sounding not in the kinds of arguments the government will make when responding to a perceived security threat, but in the role courts should play in assessing and evaluating those contentions. We can only hope… 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).