“When the government wants to do something, it has to give a reason,” former acting Solicitor General Walter Dellinger once said. “When it wants to do something bad, it has to give a really good reason.” I begin my introductory constitutional-law course every year with Dellinger’s rule. Governments must give reasons, because governments don’t have rights. They have powers—“just powers” derived, as the Declaration of Independence says, “from the consent of the governed,” and to be used, and honestly explained, for the good of the public.
That is what “limited government” means: Government must explain itself honestly, both to citizens and, if necessary, to courts. That principle is at the heart of the system of judicial review.
But there’s one place where courts seem to believe it doesn’t apply—that spooky constitutional Sargasso where immigration and national-security law flow together. For the past century and more, executive officials have told the federal courts that, in this context, the “political branches” can do, in essence, anything they want, without a lot of backtalk from judges; to a depressing extent, judges have deferred on command.
America may be a nation of immigrants, but under what’s called the “plenary power” doctrine, the government may close the door at any moment against any new immigrant or immigrant group—for any reason, or, perhaps, for no reason at all. In 1976, a unanimous Supreme Court majority wrote that “[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.” That’s because, the Court has said, control over immigration is closely linked to matters of foreign relations, war, and defense—and in those area the courts have almost no role to play.
With oral argument in Trump v. Hawaii, the “travel ban” case, just weeks away, it’s worth asking, “How’s that been working out for us?” The answer from history is, “Not all that well.” During various crises in American history, government has decided to lower the boom on unpopular racial or religious groups; later generations have seen these restrictions for what they were—transparent rationalizations for bigotry, blots on the national escutcheon that, in at least two cases, called for national apologies to the survivors.
Those Ghosts of Deference Past are loudly haunting the “travel ban” case. Survivors of three of these previous episodes have filed amicus briefs urging the justices not to hide behind the wishful assumption that the executive branch this time—finally, really, this time—is telling us the truth, and that the “ban” is based on national-security needs rather than raw racism and nativist politics. In previous cases, courts took the government’s word, the briefs argue; the Supreme Court should learn a bitter lesson from that history.
A brief filed by a coalition of Jewish groups pointedly reminds the Court that, in May 1939—six months after Kristallnacht made clear the situation of Germany’s Jews—the German liner St. Louis carried 937 Jewish refugees from Hamburg to Havana, where they had previously been given permission to land. While the ship was at sea, Cuban authorities changed their minds and rescinded the promised visas for all but 29 of the passengers. When the ship sailed on to Miami, the U.S. government also refused the remaining passengers entry as refugees. This was just a regular immigration matter, U.S. officials said; the passengers should return to Germany and apply for visas using the normal channels.
The St. Louis finally sailed away, landing its passengers at other European ports; though none was returned to Germany, 254 of the passengers eventually died in the Holocaust. In 2012, the brief notes dryly, “the United States government issued a formal apology for the country’s refusal to provide refuge for the Jewish passengers aboard the St. Louis.”
The U.S. later apologized for the Japanese Internment, too—as noted in an amicus brief filed on behalf of Karen Korematsu, Jay Hirabayashi, and Holly Yasui. Their parents were defendants in the cases in which the Supreme Court approved the arrest and shipment to concentration camps of 110,000 Japanese immigrants and their citizen children living on the Pacific Coast. The government at the time proclaimed the interment a matter of “military necessity.” That was not a misjudgment or a mistake; it was a lie. Military authorities proffered phony “evidence” of disloyalty among the West Coast Japanese and Japanese Americans; in reality, there was none. Officials of the Justice Department knew this too, but, with weasel words in their pleadings, allowed the Court to presume—or pretend to presume—otherwise. Four decades later, the convictions were vacated, and the government apologized and compensated the survivors. But the cases haven’t been formally overruled; they remain, in the words of Justice Robert Jackson, “like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
The three children urge the Supreme Court not to let history repeat itself:
The Court should … take this opportunity to acknowledge the historic wrong in Korematsu, Hirabayashi, and Yasui, and to repudiate its refusal to scrutinize the government’s claim of necessity. … Heeding the lessons of history, the Court should subject the President’s decision to meaningful judicial scrutiny and affirm the Founders’ visionary principle that an independent and vigilant judiciary is a foundational element of a healthy democracy.
The third brief may be the most surprising; it comes from a group of scholars who study the history of the Church of Jesus Christ of Latter-day Saints. Mormonism has no foreign origins; indeed, it arose in upstate New York and eventually centered itself in Utah, and today is the most uniquely American of the world’s great faiths. The scholars, however, remind the Court that the church was persecuted for decades as a sinister and foreign force corrupting American innocence, a “community of traitors, murderers, fanatics, and whores,” as one contemporary put it, led by an “American Mahomet” who presided over “the deepest debauchery, superstition and despotism known to Paganism, Mohammedanism, or Medieval Papacy.”
After the Civil War, the federal government broke up the church, confiscated its property, disinherited children of its polygamous marriages, stripped the women of Utah of the vote they had gained in 1870, and barred Mormons from jury service. Anti-Mormon political leaders also used the then-new immigration system to exclude Mormon converts. President Grover Cleveland asked Congress for legislation to bar “importation of Mormons into the country.” Immigration officials detained Mormon immigrants, deported them on some occasions and on others brought in Protestant missionaries to cure them of their religious folly. “[I]t took until well into the 20th century for the message … to dissipate,” the scholars’ brief says. “Decades after Mormons abandoned polygamy, media coverage of Latter-day Saints continued to be dominated by the suggestion that they were ‘un-American’ and bad citizens, mere ‘human units [who] move[d] instantly and unquestionably at [the] command of a religious hierarch.’”
The most impressive thing about the Mormonism scholars’ brief, to me, is its modesty. The scholars don’t support either party; all they ask is that, this time, the justices make the government show real evidence that Trump’s Proclamation is aimed at some genuine danger rather than generalized fears of Islam:
The Mormon experience illustrates why it is important for courts to carefully examine the government’s proffered reasons for singling out religious minorities. … This is precisely why the courts have an obligation to look beyond the government’s purported justifications to determine whether they are religious gerrymanders. Accordingly, amici urge this Court to take a hard look at the entire context of government action that may have a disparate impact on religious minorities.
For the government, and I suspect for some on the Court, even that modest plea is too much. Since the issuance of the first “travel ban” in January 2017, the heart of the government’s argument has been that exclusion decisions by the president are beyond review by the courts. If the chief executive gives a facially valid reason, the government argues, the court may not “look behind” it to see whether that reason is based in fact. If the president proclaims a danger from abroad, it is for the rest of us to fall in line.
Never mind that in the past that deference has led to injustice, persecution, disgrace, and apology. This time is different. Pay no attention to those tweets behind the curtain; no animus here. It’s not just Muslims—the order is also protecting us from shiploads for North Koreans, and an infestation of Venezuelan Cabinet ministers steaming toward Miami. This time there’s no racism, no prejudice, just the sober considered judgment of America’s national-security authorities.
Really. The Court has Donald Trump’s word on that.
I wonder whether any of the nine members of this Court, when not wearing a robe and a dour look, can really possibly believe that the ban is anything but a clumsy attempt to fulfill Donald Trump’s campaign promise of a “total and complete shutdown of Muslims entering the United States,” limited and dressed up for court in a swaddle of earnest rationalization. Believing the unbelievable is something judges sometimes must do; but even for them, surely there comes a point where the gag reflex becomes unendurable.
This case should be it.