Courts should be wary of deference to the executive in national security
Looming in the background of the judiciary’s review of the constitutionality of President Trump’s controversial executive order banning travel from seven predominantly Muslim nations, is the specter of the Supreme Court’s tragic World War II rulings that upheld the Japanese Internment program, one laced with racism, unfounded national security claims and excessive judicial deference to assertions of presidential power. The Court’s ruling has been a stain on its escutcheon ever since.
In Korematsu v. United States (1944), the Court upheld President Franklin D. Roosevelt’s Executive Order 9066, ratified by Congress, which required the exclusion of all persons of Japanese ancestry from parts of the West Coast. The Court relied on a falsified army intelligence report which warned that Japanese Americans represented a national security threat. The Court embraced the plea of “military necessity” as justification and was unwilling to second-guess the president’s assertion of national security threats, even though the military presented no evidence or facts that Japanese Americans had, or were inclined, to engage in acts of sabotage.
That’s why the question posed by Judge Michelle T. Friedland of the U.S. Court of Appeals for the Ninth Circuit to the Justice Department’s attorney in Tuesday’s hearing on whether the stay on President Trump’s executive order should be lifted or remain in place, was precisely the right question to raise. Judge Friedland asked the administration if it had “pointed to any evidence connecting these countries with terrorism.”
Judge Friedland’s question marked the difference between a blanket judicial deference to the executive and a rational standard of judicial scrutiny of executive claims of national security threats that requires production of evidence to support Trump’s order. Excessive deference converts the judiciary into an arm of the executive, and erases its critical role in the doctrine of checks and balances.
President Trump has sought to bully the judiciary into upholding his executive order. He referred to Federal District Judge James L. Robart, who imposed a stay on the executive order, as a “so-called judge,” and told the nation Judge Robart should be “blamed” if terrorists strike America.
Trump has also questioned the very legitimacy of the appellate hearings, declaring them “disgraceful.” The Justice Department attorney, in answer to a question from the bench, said Trump’s executive order was “unreviewable,” but later conceded the existence of “constitutional limitations,” although he could not name any when asked.
Since Korematsu, the judiciary has exhibited a greater capacity to understand the ways and means of those who would inject assertions of national security to silence discussion and opposition. In 1971, in the Pentagon Papers Case, Justice Black, the author of the Korematsu opinion, demonstrated the evolution of his thinking about judicial deference to the executive when he rejected President Richard Nixon’s assertion of authority on grounds of national security to enjoin publication of the papers.
The Solicitor General, Erwin Griswold, had argued in that case that publication of the Pentagon Papers represented a substantial harm to America’s national security, but acknowledged in a Washington Post Op-Ed in 1989 that he had “never seen any trace of a threat to the national security from the publication.” In a 2004 opinion, Justice Sandra Day O’Connor wrote for the Court that a state of war war does not grant the president a “blank check of authority.”
The Japanese Internment cases represent a sober reminder of the damage that can be inflicted when courts abdicate their responsibility to scrutinize presidential assertions of national security. As Trump’s executive order moves through the judicial pipeline, the courts should not repeat that tragic mistake.
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David Adler is president of the Alturas Institute, and co-author, most recently, of “The War Power in an Age of Terrorism: Debating Presidential Power.”