Putting Korematsu to Rest, Not a Moment Too Soon

By: Lawrence Friedman

More than a few commentators have noted the U.S. Supreme Court’s effort in Trump v. Hawaii, the travel ban case, to put to rest any lingering doubt about the validity of one of the nation’s most notorious judicial precedents, Korematsu v. United States.

In that World War II-era case, the Court upheld the government-mandated internment of Japanese-American citizens. Though the Korematsu court purported to subject the internment order to the most intense judicial scrutiny, in reality it caved to governmental fearmongering and unsupported allegations that the citizens in question posed some kind of national security threat.

To say that Korematsu does not represent the Supreme Court’s finest moment is an understatement. But the circumstances of the case were unique, and the Court has had no occasion since to reconsider the ruling or its precedential value.

Until, that is, it agreed to decide the constitutionality of the Trump administration’s restrictions on entry into the United States by foreign nationals from predominantly Muslim nations. Challengers contended that, like the World War II internment order in Korematsu, the travel ban reflects a discriminatory policy judgment disguised as a national security measure. This is essentially what Justice Sonya Sotomayor argued in her dissenting opinion: “By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security,” she wrote, “the Court redeploys the same dangerous logic underlying Korematsu.”

In response, Chief Justice Roberts, writing for the majority in Trump v. Hawaii, distinguished the government action in each case. In Korematsu, he reasoned, the Court allowed the government to forcibly relocate U.S. citizens exclusively on the basis of race. Here, by contrast, the government, citing valid national security concerns, seeks to deny foreign nationals “the privilege of admission.”

The distinctions between the cases are not frivolous. The court has a long history of deference to national security decision making, and the travel ban policy was, technically, neutral on its face. At a higher level, of course, it seems difficult to deny the evidence of discriminatory animus underlying the ban. But the majority kept its view at ground level, likely because it did not want to deal with the implications of applying a stricter standard of review to the policy determinations of this particular White House.

And, importantly, the Chief Justice did more than just distinguish Korematsu. That decision, he stated, “was gravely wrong the day it was decided, has been overruled in the court of history and [quoting Justice Robert Jackson, one of the Korematsu dissenters]—to be clear—‘has no place in law under the Constitution.’”

Despite the Court’s reluctance to credit the animus underlying the travel ban, its statement about Korematsu is not hollow. To the contrary, it was not so long ago that associates of President Trump were seriously suggesting that the federal government could rely upon Korematsu to justify tracking and detaining Muslim-Americans and Muslim immigrants. The Court in Trump v. Hawaii put an end to that line of thinking, setting at least one definitive limit on this administration’s ability to act on its worst impulses.

Lawrence Friedman teaches courses in constitutional law, privacy law and national security law at New England Law | Boston and is the author, most recently, of Modern Constitutional Law.

Faculty Blog: SCOTUS to Hear eCommerce Sales Tax Case

By: Natasha Varyani, Adjunct Professor of Law

The United States Supreme Court is scheduled to hear arguments in the case of South Dakota v. Wayfair, Inc., addressing the issue of when sales tax needs to be collected by online retailers engaged in eCommerce.  In its 1992 decision in Quill v. North Dakota, the Court ruled that a retailer must have a “physical presence” in a state in order to be subject to that jurisdiction’s sales and use tax laws.  The Court in Quill was revisiting its 1967 holding in National Bellas Hess v. Department of Revenue, in which it reviewed the authority of a state to impose its sales and tax laws on an out of state entity doing business in state.

Both Bellas Hess and Quill dealt with retailers that conducted sales through mail order, and their only presence in state was the catalogue of products offered.  The Court in Quill cited “tremendous social, economic, commercial and legal innovations” that had occurred in the twenty-five years that had passed since its holding in Bellas Hess to justify overruling that former holding. 

Twenty-six years have passed since Quill.  In that time, the change in social, economic, and commercial life has been both dramatic and extremely rapid, so it only follows that the law should adapt in response.  The holding in Quill articulated the “physical presence” standard, which demanded that, in order for a state to impose its sales and use tax laws on a retailer, that retailer was required to have a physical presence in state.  Understanding the standard for imposition of sales tax, some retailers, notably Amazon.com, selected jurisdictions for their headquarters and warehouses intentionally to avoid having a physical presence and therefore being subject to sales and use tax laws in high tax jurisdictions.  Though Amazon.com has a business plan that focuses less on state sales tax than it formerly did, online retailers like  Wayfair (the plaintiff in this suit), Overstock.com, and NewEgg have benefitted from the physical presence standard set forth in Quill.

Continue reading “Faculty Blog: SCOTUS to Hear eCommerce Sales Tax Case”

Faculty Blog: United States v. Texas

On April 18, the Supreme Court heard oral arguments in the case of United States v. Texas. The case involves the arguments put forward by twenty-six states, challenging the President’s November of 2014 Executive Action, which could have made around 5 million parents of citizens and lawful permanent residents (known as DAPA) eligible to apply to have their deportation deferred. It would also have slightly expanded the class of pre-existing eligibility for deferred action for childhood arrivals (DACA), already in effect since 2012. The mechanism through which executive action would take place is the President’s request that his subordinates within the prosecutorial arms of DHS exercise their prosecutorial discretion in determining where and how to use and focus limited deportation resources. Congress enacted the Immigration and Nationality Act, tasking the agencies with enforcing immigration, but provides insufficient funds for the agencies to carry out their mandates. The Executive must then make decisions about how to prioritize those mandates. Neither DAPA nor the expanded DACA class confers anything other than the eligibility for certain persons to apply for time limited deferral from removal. With deferred action, under a different set of pre-existing regulations, passed under earlier Congresses and presidents, comes eligibility for work authorization.

Continue reading “Faculty Blog: United States v. Texas”

Contributing Author Profile: Sonja West

Sonja R. West is an associate professor at the University of Georgia School of Law, which she joined in 2006. She teaches courses on Constitutional Law, Media Law, and the U.S. Supreme Court.

Sonja earned a B.A. in journalism and communication studies from the University of Iowa. Prior to attending law school, she worked as a reporter in the Midwest and Washington, D.C. She received her J.D. from the University of Chicago School of Law where she served as executive editor of the school’s Law Review.

Following law school, Sonja served as a judicial clerk for the 9th Circuit Court of Appeals, then for the U.S. Supreme Court under Justice John Paul Stevens. She later worked as an attorney for a Los Angeles law firm where she represented media clients on First Amendment and intellectual property issues. Prior to joining the Georgia law faculty, she taught as the Hugo Black Faculty Fellow at the University of Alabama School of Law.

Sonja’s work has been published in numerous law reviews, including the Harvard Law Review, the UCLA Law Review, and the Michigan Law Review. She has contributed articles concerning legal issues to Slate and Huffington Post. She frequently appears as a commentator for news media outlets, including The New York Times, the National Law Journal, MSNBC, Bloomberg News, The Guardian, NPR, and The Boston Globe.

Contributing Editor: Ryan Goodhue

Contributing Author Profile: Clay Calvert

Respected author and professor, Clay Calvert, will be a panelist at the New England Law Review’s Spring Symposium on February 11, 2016.

Professor Calvert earned his B.A. in Communication with distinction and Ph.D. in Communication from Stanford University. He also received his J.D. Order of the Coif from the University of the Pacific’s McGeorge School of Law. Professor Calvert is a member of the State Bar of California and the Bar of the Supreme Court of the United States.

Professor Calvert is currently a Professor and Brechner Eminent Scholar in Mass Communication at the University of Florida in Gainesville where he teaches both undergraduate and graduate-level courses on communications and media law issues. He also directs the Marion B. Brechner First Amendment Project.

Professor Calvert has authored or co-authored more than 120 published law journal articles on freedom of expression-related topics. He is co-author of the leading undergraduate media law textbook with Don R. Pember, Mass Media Law (19th Ed. McGraw-Hill), and is author of the book Voyeur Nation: Media, Privacy, and Peering in Modern Culture (Westview Press).

Contributing Editor: Aysha Warsi

Contributing Author Profile: Amy Gajda

Amy Gajda is currently an Associate Professor of Law at Tulane University Law School and is internationally recognized for her expertise in the areas of information privacy, media law, torts, and higher education law. In 2013 she was awarded the Felix Frankfurter Award for Distinguished Teaching, Tulane University Law School’s highest teaching honor. She has chaired the Association of American Law Schools’ Sections on Mass Communication and Defamation and Privacy. Ms. Gadja also led the Association for Education in Journalism and Mass Communication’s Law and Policy Division.

Prior to pursuing her law degree, Ms. Gadja worked as an award-winning television journalist and news anchor. She then went on to practice law in Washington, D.C. before beginning her teaching career.

Ms. Gadja’s works have been published in The New York Times, as well as a number of legal journals. She has also authored two books, The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press, published in 2015, and The Trials of Academe, published in 2009. Her research interests focus on the intersection of social law and journalism.

The New England Law Review is proud and honored to feature Amy Gajda as our keynote speaker, and her book The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press at our 2016 Spring Book Symposium.

Contributing Editor: Shannon Boyne

NELR Happenings: The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press — Spring 2016 Symposium

Join the New England Law Review for our spring book symposium on February 11th at 4:00 p.m. in the Cherry Room at New England Law | Boston. It will showcase Professor Amy Gajda’s book “The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press.” Her book explores judicial oversight of journalism news judgment. She will discuss how the expansion of acceptable news content has shifted courts’ focus from the First Amendment to individual privacy—a shift that curtails mainstream journalists’ press freedoms. Both Professor Calvert as well as Professor West will respond.

The symposium will feature Professor Amy Gajda, a Visiting Scholar from Tulane University Law School, as our keynote speaker, as well as feedback and commentary from a panel of prominent legal voices, including:

  • Professor Clay Calvert, University of Florida
  • Associate Professor Sonja R. West, University of Georgia Law

Sponsored By: New England First Amendment Coalition

For more information, visit our symposium page here.

You can also let us know you are going on our Facebook event page.

We look forward to seeing you there!