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: What the Improper Removal of Mueller Could Mean for Trump’s Presidency

By: Tigran Eldred and Lawrence Friedman

President Trump has recently taken to Twitter to disparage Special Counsel Robert Mueller’s investigation of possible links between the Trump campaign and Russia during the 2016 election. Coupled with the Attorney General’s firing of former deputy director of the FBI Andrew McCabe days before his retirement, the President may be seeking to undermine Mueller’s credibility and to send him a message. But it also could be seen as a dry run for the next step: dismissal of Mueller himself. The difference is that the improper removal of Mueller before the completion of his investigation would be an abuse of power so profound that Congress should act immediately in response.

Congress could respond in two ways. The first would be to enact a new independent counsel statute, akin to the kind of legislation the U.S. Supreme Court determined was constitutional in the 1988 case of Morrison v. Olson. There, the Court confirmed that Congress has the power to protect an investigation from unwarranted executive branch interference by requiring good cause before the independent counsel can be removed, a decision that would then be subject to judicial review. There are details Congress would have to address, such as who ultimately would make the appointment decision, but the end goal would be to ensure that the Mueller investigation could continue to completion.

The second option would be the ultimate act of Congressional oversight in response to abusive presidential overreach: commencement of impeachment proceedings. Indeed, Republican Senator Lindsey Graham from South Carolina indicated as much when asked in an interview following the dismissal of McCabe, stating that the firing of Mueller without cause would “probably” be an “impeachable offense.”

A central tenet of our democracy, as the Supreme Court has repeatedly affirmed, is that no one – not even the President – is above the law. If the President’s firing of Mueller – a lawyer with extraordinary credentials, a sterling reputation, and whose appointment as special counsel was welcomed by both parties – were to go unchecked, we will have come dangerously close to realizing one of the framing generation’s great fears: rule by a government of men and not of laws.

The nation faced a similar crisis in the Watergate era. In 1973’s Saturday Night Massacre, President Nixon sought to rid himself of the special prosecutor who had been investigating his White House. Realizing this assault on the investigation jeopardized the core principle that no one, including the President and his closest advisors, is above the law, thousands of Americans expressed their outrage through telegrams, letters and phone calls to their representatives in Washington, D.C. Popular sentiment turned against the President, toward calls for impeachment; the moment marked the start of Nixon’s downfall.

The Nixon White House was under investigation for domestic crimes, including the burglary of the Democratic National Committee’s office and its ensuing cover-up. As bad as those crimes were, they did not pose a direct threat to the national security of the United States. Today, by contrast, Mueller and his team are investigating whether the Trump campaign coordinated with Russia in its efforts to undermine the U.S. electoral system, and whether Russia holds compromising information about the President, information that could be used to undermine our nation’s sovereign interests.

These questions demand answers. Any effort to end the legitimate investigation of these issues by firing Mueller would indicate President Trump believes he can act with impunity. The framers feared precisely this kind of chief executive. As Andrew Sullivan recently noted, the premise underlying their adoption of the impeachment option was straightforward: “If the president was to start acting like a king, he could be dispatched.”

Republicans in Congress would do well to remember that their predecessors recognized the framers’ foresight: forty years ago, they were heroes in the Nixon saga as they put nation above party. Today, those Republicans are justly remembered for their patriotism. We may soon be at such a critical moment again – perhaps more critical. Should it become necessary, will members of Congress stand up and re-affirm the principle that no one, including the president, is above the law? Nothing less than the security and future of the nation could be at stake.

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.

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Faculty Blog: The President, the Courts, and National Security

By: Lawrence M. Friedman

Professor Eric Posner recently explained a dilemma the federal courts face in the wake of President Trump’s election: how to check unconstitutional excesses while, at the same time, respecting the deference afforded “the president on national-security matters” in light of the president’s ability to act “on the basis of classified information,” coupled with the “need to move quickly.”

That deference turns on a level of trust of the executive that courts, as exemplified by the unanimous decision of the Ninth Circuit Court of Appeals in State of Washington v. Trump, may not hold. Posner warns of the possibility that the president, faced with many such decisions, might defy the courts. This raises the question whether the possibility of defiance, in itself, justifies adhering to the traditional deference the courts accord national security decision-making.

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Faculty Blog: The Most Important Qualification for a Post in President Trump’s Cabinet

By: Lawrence M. Friedman and David M. Siegel

As the confirmation process for President Trump’s cabinet comes to a close, it’s worth noting that Senators have failed to question any of the nominees about their understanding of their constitutional responsibilities under the Twenty-Fifth Amendment, much less whether any would be willing to fulfill those responsibilities. That Amendment provides for succession when the President “is unable to discharge the powers and duties of his office”—either when the president declares this inability or when a majority of “principal officers of the executive departments,” together with the vice president, make that determination. It is this latter situation that we should hope the members of President Trump’s cabinet fully appreciate.

This President has insisted, throughout the campaign and into his first weeks in office, on the truth of facts at odds with objective reality—sometimes harmless, and at other times in ways that have antagonized America’s longstanding allies. To their credit, some cabinet nominees have acknowledged, tacitly, their divergence from the Chief Executive on many of these points. But that acknowledgment is just the start: the Constitution charges the members of the cabinet with determining whether the President’s inability to accurately perceive and respond to objective reality poses a threat to our national security. Should they make such a determination, they, together with the Vice President, have a duty to act on that information and trigger the succession provisions of the Twenty-Fifth Amendment.

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Faculty Blog: The Post-9/11 Weight of Korematsu

By: Lawrence M. Friedman and Victor M. Hansen 

Associates of President-elect Donald J. Trump have suggested that the infamous Supreme Court decision upholding the internment of Japanese-Americans during World War II, Korematsu v. United States, could be used to justify measures aimed at tracking and potentially detaining Muslim-Americans and Muslim immigrants. As Professor Noah Feldman has recently noted, the Korematsu decision is widely regarded today as having been wrongly decided and it has been, as Justice Stephen G. Breyer has put it, “discredited.”

But there is another reason why the precedential value of Korematsu has been diminished: its basic premise has been undermined by the Supreme Court’s more recent decisions in Hamdi v. Rumsfeld and Boumediene v. Bush.

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Faculty Blog: Deportation of Undocumented Persons and DACA Beneficiaries Could Crash this Country

By: Dina Francesca Haynes 

President Elect Trump has indicated, in his 100–day plan, that he would, on his first day in office, invalidate all unconstitutional Executive Orders issued by President Obama. Those of us who work in the immigration and constitutional law fields understand this to mean that in January, among other actions, approximately one million young people here pursuant to Executive Action and currently in high school, college, or the military, or who have recently completed one of these, will become deportable. These are the DACA recipients, beneficiaries of Deferred Action for Childhood Arrivals. They are in school with you or your children. They work alongside you. They pay college tuition (they are not eligible for federal financial aid, so they pay a lot of college tuition). Those who applied and were successful received work authorization and a temporary promise from the Obama Administration enabling them to remain in the United States for a short period of time, so that families would not be torn apart and so that children who entered through no fault of their own, many of whom never even knew they were undocumented until they applied to college, were not punished.

If Trump goes through with his promise to invalidate DACA, he has several options, all of which have serious and perhaps unintended economic consequences that are very bad for this country.

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Faculty Blog: Analyzing Race-Based Classifications After Fisher

By: Lawrence M. Friedman 

In his dissenting opinion in Fisher v. University of Texas, Justice Alito argues that the Court indulged the university’s “plea for deference” in the application of strict scrutiny to its race-based affirmative action program. And he’s probably right, too: the scrutiny the majority applied in Fisher seems less strict than the scrutiny the Court historically has given race-based classifications.

But this isn’t to say that the result Alito would have reached—striking down the university’s plan—is also right. For he fails to appreciate that, just as equal protection doctrine protects only individuals who are similarly situated, strict scrutiny applies in the same way only in similarly situated cases. In other words, context matters—and context explains why higher education affirmative action programs may survive judicial review where the governmental use of race in other contexts would not.

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Faculty Blog: SCOTUS’s Use of Exclusionary Rule Becomes A Charade in Utah v. Strieff

By: Victor M. Hansen 

The Court’s opinion in Utah v. Strieff is the latest in a series of recent opinions in which the Court has significantly undermined Fourth Amendment protections by limiting the application of the exclusionary rule. As my colleague, Professor Friedman, noted in his recent post, the Court’s Fourth Amendment jurisprudence effectively allows the government to pursue policy goals in ways that conflict with individual privacy protections. The Court has been able to justify this by viewing the exclusionary rule as solely a tool to deter police misconduct. In situations where, in the Court’s view, the exclusionary rule would not deter police misconduct, the rule comes at too high a cost, and a number of exceptions have been judicially created to limit its application.

Of course, the exclusionary rule is a judicially created rule to begin with, since nothing in the language of the Fourth Amendment suggests a remedy for violations. And it can certainly be argued that, since the rule is judicially created, the courts and specifically the U.S. Supreme Court should be able to modify it as it sees fit. However, on closer examination, the Court’s rationale for not applying the exclusionary rule in Strieff and other recent cases only makes sense if you adopt a rather narrow view of deterrence.

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Faculty Blog: Supreme Court Effectively Upholds Fifth Circuit Judge’s Injunction of DAPA in U.S. v. Texas

By: Dina Francesca Haynes 

Last week, the Supreme Court issued its (non)-decision in Texas v. United States. At issue: whether one judge in Texas could enjoin a federal immigration program crafted by the Executive Branch, and whether the Executive Branch had exceeded its authority in so doing. I wrote about this case earlier this year, predicting a 4-4 split with the current court one justice down. Unfortunately, my prediction was borne out.

The Fifth Circuit—specifically one judge, Judge Andrew S. Hanen (who was recently accused of abuse of discretion when he imposed sanctions on federal government attorneys whose arguments he didn’t like)—had earlier decided that the State of Texas had established a substantial likelihood of success on the merits of their procedural and substantive claims required for an injunction. What is unusual in this case is that a district judge’s preliminary injunction applies nationwide (and not, as would ordinarily be the case, in the judge’s district only).

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