Masquerading Behind a Facade of National Security

Abstract

In 1944, the Supreme Court in Korematsu v. United States upheld President Roosevelt’s executive order initiating the mass removal and incarceration of 120,000 Japanese Americans on falsified claims of group disloyalty. In the ensuing decades, some courts and scholars have cited Korematsu as precedent for extreme judicial deference when reviewing sweeping restrictions of civil liberties defended as national security measures. In sharp contrast, others have highlighted the World War II-era decision as a cautionary tale about the harm to vulnerable minorities and the damage to American democracy that can occur when the judiciary abandons its role as a guardian of fundamental liberties. To these commentators, Korematsu’s principle of exceeding judicial passivity is a “loaded weapon,” ready for the hands of future overzealous or unscrupulous government leaders.

Seventy-five years later, Korematsu remains startlingly significant, especially after the Supreme Court’s 2018 ruling in Trump v. Hawaii that repudiated a key part of Korematsu (mass racial incarceration) while replicating another key part (extreme judicial deference). This significance is highlighted by a pressing question for a constitutional democracy both concerned about national security and committed to the rule of law: what will happen when those detained, harassed, or discriminated against in the name of national security turn to the courts for legal protection? This Essay refracts this question through the lens of Korematsu and its 1984 coram nobis reopening, examining how courts will — and should — respond to the dual needs to promote national security and protect fundamental democratic liberties.

Keywords: Korematsu, Coram Nobis, Trump v. Hawai’i, Travel Ban, National Security, Civil Liberties, Judicial Deference, Heightened Scrutiny, Plenary Power Doctrine, Loaded Weapon Warning