Korematsu Part II? Terror, Panic, and Institutional Failure

By Ana Choi*

In the aftermath of the recent terrorist attacks in Paris, panic has engulfed the United States. The fact that the attacks occurred in France—rather than in a distant and war-torn country that we can psychologically distance ourselves from—has shattered people’s sense of security and caused the threat of terrorism to loom larger and more real than before. Unsurprisingly, the immediate reaction of many politicians and lawmakers has been to champion drastic, sweeping measures that would assuage the public’s fear at the expense of civil rights and sound immigration policy.

Some of the more extreme suggestions that have been made so far include closing mosques, requiring all Muslims to register, and having the National Guard round up the Syrian refugees who already live in the US. Some have gone so far as to look to the mass internment of Japanese-Americans during World War II as a helpful precedent. While the foregoing ideas are examples of political rhetoric rather than serious proposals, the speed at which we are giving in to the instinct of defensiveness and suspicion suggests that some may view these as viable options. The House of Representatives has just passed a bill greatly tightening screening procedures for refugees from Syria with a veto-proof majority, and the bill will be taken up by the Senate after the Thanksgiving break. Every single one of the Republican presidential candidates supports either keeping out all Syrian refugees or only accepting Syrian refugees who are Christian. Twenty-five Republican governors are defying President Obama’s plan to resettle 10,000 Syrian refugees in the United States by vowing to keep the refugees out from their states, despite legal scholars’ arguments that these efforts are an unconstitutional infringement upon federal power.

The thing that is most striking about these responses is that they are coming from all branches and levels of government. When Congress passed the Non-Detention Act of 1971 declaring that “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress,” the goal was to prevent future presidents from overreaching their executive power, as President Roosevelt did by detaining Japanese-Americans during World War II. But what do we do when panic-induced actions are being taken by Congress or by state governments, rather than by the executive branch? The Supreme Court has not had the opportunity to have its say on the issues being discussed here, but if/when it does, what if the Court again succumbs to societal hysteria and fails to protect constitutional civil rights, as it did in Korematsu v. United States?

Of course, there is an important difference between the civil rights nature of the violations that occurred with regard to the internment of Japanese-Americans during World War II and the political nature of the decision to keep out Syrian refugees. However, it is a short step from trying to keep out Syrian refugees to infringing upon the civil rights of the refugees who already live in the United States. Immigration policy and protection of civil rights may formally be separate topics, but they are functionally interconnected and relevant to one another in the context of how a society will treat its ‘outsiders’ and ‘others’ when faced with threats to society’s safety.

Institutional safeguards and the system of checks and balances are often not enough to prevent our government from overstepping constitutional boundaries during times of danger and paranoia. The Supreme Court could ultimately provide the necessary check on legislative power in the face of another Korematsu. However, when society perceives that it is threatened, all governmental bodies are at risk of overreacting and overcompensating, and there is no reason to believe that any one of the President, Congress, or the Supreme Court is immune from this risk. Thus, instead of relying on institutional solutions—the way that the Non-Detention Act of 1971 tried to do by moving the ball from the President to Congress—it is imperative that lawmakers and policymakers constantly remind themselves on a personal level about the mistakes of the past and consciously combat the instinct to sacrifice justice for the sake of security.


* Ana Choi is a 3L attending Harvard Law School.

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