There are a handful of old Supreme Court cases —the pro-slavery Dred Scott case, the pro-segregation decision in Plessy v. Fergusson, the anti-worker decision in Lochner v. New York — which are…
There are a handful of old Supreme Court cases —the pro-slavery Dred Scott case, the pro-segregation decision in Plessy v. Fergusson, the anti-worker decision in Lochner v. New York — which are considered so odious that no lawyer should ever cite them except to compare their opponent’s argument to the discredited reasoning in that case. Korematsu v. United States, which upheld the World War II era decision to round up Japanese-Americans and put them in camps, is one of those decisions.
So when a federal appellate judge compared the Trump administration’s defense of its Muslim ban to Korematsu on Monday, that was a pretty good sign that the ban is in trouble.
Korematsu reared its head in response to Acting Solicitor General Jeffrey Wall’s argument that courts cannot dig into Trump’s true motives for issuing the Muslim ban — or at least, that they can’ t dig into Trump’s many statements as a political candidate — and must largely accept as fact that Trump implemented the ban for the non-discriminatory, national security reasons stated in the order.
As a candidate, Trump repeatedly promised to ban Muslims from entering the United States if elected president. He later suggested that he would frame the ban as a prohibition on people from Muslim-majority nations entering the country, rather than as a direct ban on Muslims, to avoid the legal issues that arise from a direct ban. “People were so upset when I used the word ‘Muslim,’ ” Trump said, so he shifted his rhetoric to talk about “territory instead of Muslim.”
Initially, Trump fulfilled this campaign promise by issuing a broad order banning travel by nationals of seven Muslim-majority nations, although he later watered down the original order and reduced the number of impacted nations to six after his first order ran into trouble in the courts .
