Power & Market
While the coverage of today's 5-4 Supreme Court ruling upholding President Trump's travel ban will understandably focus on how it is a "win" for the current administration, perhaps the most positive revelation from the decision is that it offered a major defeat for President Franklin Roosevelt.
This year marked the 76th anniversary of Executive Order 9066, the executive decree that authorized the US military to detain Japanese Americans and place them in "internment camps." As Ryan McMaken noted this February, the precedent established was still valid:
The U.S. Government has never repudiated the legal principle behind concentration camps, and maintains the legal right to use them again. Often, when libertarians or others point out that the United States is not a free country, the defenders of the status quo point to the fact that people can vote. This magical talisman held out by government apologists, known as “the vote” doesn’t seem to have worked out very well for the Japanese Americans during World War II, who also had “the vote.”
Interestingly, tucked into today's court decision is a full condemnation by the Court of the 1944 case Korematsu v. United States which defending the legality of FDR's policy. As Justice John Roberts wrote:
Finally, the dissent invokes Korematsu v. United States, 323 U. S. 214 (1944). Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. The forcible relocation of U. S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.. The entry suspension is an act that is well within executive authority and could have been taken by any other President—the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation.
The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.”
Now will today's decision actually prevent a future government from acting in a similar way to FDR? Of course not. It has been proven time and time again that a government, in a time of crisis, will happily dismiss any claim to rights a citizen has- an inherent weakness of constitutionalism. Still, it is good to see the Court acknowledge this past evil, even going so far as to use the words "concentration camps" to describe the Federal government's actions.