The Mercury News: Courts have to be able to review executive orders like Trump’s

By Margaret M. Russell

When President Trump asserts the supremacy of his executive orders, unhampered by the power of “so-called judges” to review his actions, he disregards a foundational truth of U.S. constitutional law:  the independence of the judiciary.

As Chief Justice John Marshall wrote in Marbury v. Madison (1803):  “It is the duty of the judicial department to say what the law is.”  If courts cannot review the actions of executives or legislatures, based on a well-developed and truthful record, our country has lost its system of checks and balances.

We have been down that road before.

Seventy-five years ago, on Feb. 19, 1942, President Franklin D. Roosevelt issued Executive Order 9066, which authorized the Secretary of War to create military zones deemed “necessary or desirable” to sequester certain people in the interests of national security.

The order led quickly to the internment of approximately 120,000 people of Japanese ancestry, over two-thirds of whom were American citizens. Other groups were also targeted:  people of German and Italian ancestry, as well as Jewish refugees — and many were interned.  However, Japanese-Americans comprised the largest number by far because they were thought to be an “enemy race.”

When the constitutionality of the president’s order was challenged in Korematsu v. United States (1944), the Supreme Court held for the President. Six justices accepted the argument that military necessity justified deference to an executive power so broad that it erased liberty and property rights without due process.

One of the three dissenters decried the decision as the “legalization of racism.”
Many decades later, we view the Japanese-American internment as one of the greatest injustices in American history.

In 1980, President Jimmy Carter signed legislation that created a Commission on Wartime Relocation and Internment of Civilians. Its 1982 report determined that the internment was created not from military necessity, but from “race prejudice, war hysteria, and a failure of political leadership.”

Korematsu v. United States was a product of those factors as well. The decision is now widely regarded as a “stain on American jurisprudence,” a decision as repugnant as Dred Scott v. Sandford (1857), denying the personhood of enslaved blacks, and Plessy v. Ferguson  (1896), upholding segregation.

Korematsu also represents a failure of judicial review. Peter Irons’s research in the 1980s revealed that Roosevelt’s Solicitor General had suppressed critical evidence in the case and had made serious misrepresentations to the Supreme Court.  This discovery led to federal trial court decisions nullifying the convictions of Korematsu and two others.

In 2011, Acting Solicitor General Neal Katyal took the unprecedented step of acknowledging the misrepresentations of the 1944 Solicitor General. Katyal filed a formal “admission of error” explaining that the government’s defense of the Executive Order had been wrong and should have no further value moving forward.

As of today, the Obama Administration’s Acting Solicitor General’s statement in 2011 is the most recent executive branch statement on the unconstitutionality of the Japanese-American internment. The Korematsu decision itself has never been revisited or overruled by the Supreme Court.

The long road from the issuance of Executive Order 9066 to its demise decades later is a cautionary tale about the current spate of executive orders that Trump deems “unreviewable” by the courts.

Under the best of circumstances, judicial review can be a strong and impartial check on the constitutionality of actions by the executive and legislative branches. Without transparency and truth from the other branches, judicial review suffers in its capacity to interpret the Constitution and other laws.

Without a truly independent judicial branch, the public has little protection from the vagaries of bigotry and fear that can lurk beneath rationalizations of national security.

Margaret M. Russell is professor of constitutional law at Santa Clara University. She wrote this for The Mercury News.