By Heidi Groover
In a brief filed in federal court, the children of three Japanese Americans who challenged the U.S. government's detention programs during World War II are asking the court to reject President Donald Trump's travel ban because it is based on the same racist ideas that led to Japanese internment.
"Their interest is in reminding this court of the legacy those judicial decisions had on their generation and will have on future generations," the brief reads, "and the impact of judicial decisions that fail to protect men, women, and children belonging to disfavored groups in the name of national security."
Jay Hirabayashi, Holly Yasui, and Karen Korematsu are joined in an amicus brief by several legal advocacy groups, including Seattle University's Korematsu Center. The center is named for Karen Korematsu's father, Fred Korematsu, who, at 22 years old, defied government orders to live in an internment camp. Hirabayashi's father, Gordon Hirabayashi, and Yasui's father, Minoru Yasui, also refused to follow government-imposed curfews or register at internment camps. All three became symbols of the movement against internment as they took their cases to the U.S. Supreme Court, which upheld their convictions.
The amicus brief is part of the ongoing case of Darweesh and State of New York v. Trump, in which the American Civil Liberties Union successfully won a temporary injunction blocking the travel ban on January 28, the day immigrants and refugees were being held at airports across the country.
In the brief, the Korematsu Center and a coalition of other Asian, Latino, African-American, and Native legal groups write that the federal government's defense of the travel ban is dependent on the doctrine of "plenary power," the concept that certain actions of the executive branch are not subject to judicial review.
That idea, the groups write, "is linked to racist attitudes from a past era and has long since fallen out of favor." The groups cite cases in which the court defended the executive's authority to restrict immigration while characterizing immigrants as a threat to national security or unable to assimilate as well as more recent cases in which the court has limited the executive's power over immigration issues.
Sunday was the 75th anniversary of the signing of Executive Order No. 9066, which allowed the military to intern 110,000 people of Japanese descent. While the Supreme Court upheld Korematsu's conviction, the federal government later admitted it knew only a small fraction of Japanese Americans posed a potential security threat.
"The revelation that the government’s unprecedented action was not in fact necessary," the groups write in their brief, "is but one reason that Korematsu is not only widely understood as wrongly decided as a matter of law, but remains a black mark on our nation’s history and serves as a stark reminder of the dire consequences that result when abuses go unchecked by the judiciary."
Later, they add, "History may look similarly at this period if courts allow the executive order to evade robust review based on a plenary power doctrine rooted in outdated notions and xenophobia, or an unwillingness to apply healthy judicial skepticism to government action taken in the name of national security. This court should not abdicate its duty to stand as a bulwark against governmental action that undermines our core constitutional principles."
Although Washington State Attorney General Bob Ferguson is declaring victory after the Department of Justice indicated Trump plans to rescind the travel ban and replace it with a new executive order, the New York case is ongoing. The next hearing in the case is Friday.
In another amicus brief in the case, the City of Seattle has joined other cities in arguing the travel ban "offend[s] the values of our cities and would inflict deep wounds on our most basic institutions, including our families, businesses, educational and cultural organizations, and medical facilities."
"The xenophobia and religious discrimination endorsed by the executive order," the cities write in the brief, "are particularly toxic for amici cities, whose social fabric depends on tolerance and inclusiveness."