There is No Supreme Court Precedent for a Muslim Registry

Posted: November 21, 2016 by beguide in Immigration, Legislation, Religious Freedom, Uncategorized, White Skull


Last week, news began circulating about a U.S. registry for Muslim immigrants. Although this idea had been floated out by Trump during his campaign, the idea gained additional traction when a Trump advocate defended the registry on grounds that the U.S. Supreme Court had upheld a similar classification based on race in the 1940’s.  Factually, this last statement is true.  In 1944, the Supreme Court held in Korematsu v. U.S. that Japanese internment camps survived Constitutional scrutiny on grounds that national security warranted extreme measures during times of “emergency in peril”.   It is also true that this is one of the only cases not explicitly overruled where the Court permitted a governmental classification based on race.   That being said, any other statements, inferences or arguments that Korematsu is valid precedent to support a registry in 2016 are idiotic propositions that serve to only raise the bar for idiotic propositions during a time when idiotic propositions are something of a cottage industry.

To start, the concept of precedent stands for the position that new cases should be ruled in conformity with old cases to ensure that the law is consistent, predictable and fair.  Consider the following hypothetical, where the greatest person alive gets a DUI on the way home from a X-Mas party.  This person is generous, philanthropic, and humbled by their mistake.  The Court recognizes these factors and spares this person any punishment, reasoning that the embarrassment of the charge is punishment enough.  Now, imagine this same person is instead a dead-beat dad who has accumulated his 5th DUI charge on the way home from a child pornography party.  The Court is not only unsympathetic to this person’s concerns, but doubles the maximum sentence to set an example.  Although this particular situation may seem fair, it becomes much less palatable if the difference between these two people is only based on race, gender, religion or nationality.  In addition to the broader policy concerns, there are also practical benefits to a consistent application of the law.  If precedent applies evenly to everyone, lawyers can give better advice and civilians can better plan their conduct with a fixed idea of how the law is applied.    A good example of the value of uniform laws is in the great State of Delaware, where highly developed precedent in corporate law has made the First State the premier place to incorporate your business since the outcome of any dispute is more easily predictable.  It is also important to note that precedent serves to apply the law evenly, and is not just based on the individual facts of the case.  In the hypothetical above, it is not that all deadbeats are treated the same, but instead that DUI law applies evenly to every person regardless of who they are.      Therefore, the classification in Korematsu is not an open-gateway for any type of racial classification, but it merely sends the groundwork for how today’s Court would view a racial classification under the Constitution.

To that end, it is hard to see how Korematsu could serve as precedent because the legal reasoning underlying the Korematsu decision is inapplicable to a Muslim registry in 2016.  The legal basis for the Koretamtsu decision was under the Equal Protection Clause of the 5th and 14th amendment, which applies a two part test whenever the government classifies individuals differently.  The test, which considers (1) the government’s reason supporting the classification, and (2) how connected the classification is to the government’s stated purpose, becomes harder to pass depending on the classification.  If the government is classifying individuals based on an immutable characteristic (race, creed, nationality, religion), the test is called Strict Scrutiny and it is almost impossible to pass.  The reason the word “almost” is included in that last sentence is because of Korematsu, as this is one of the only government actions that has passed a racial classification under Strict Scrutiny.

While that sounds foreboding, note the following factors that played into the 6-3 Korematsu majority decision.  First, the government’s stated purpose for the internment camps were highly influenced by U.S. military relations in 1944.  Koretmatsu was issued approximately three years after Pearl Harbor and six months after D-Day.  To that end, the Court believed that the government had a compelling interest in the protection of national security by preventing espionage during a time of active war.   Regardless of how you feel about immigration, ISIS, or the Middle East, this concern is not present today.  The U.S. is not involved in a military conflict similar to the scale of World War III and the purpose behind the Muslim registry is not to prevent the same type of espionage.  These differences may become blurred depending how the World turns, but at present day, these differences invalidate Korematsu as precedent as under the first element of Equal Protection because today’s government does not have the same compelling reason to set up a registry that classifies immigrants by their religion.

The second element of strict scrutiny, considering whether the government’s policy is related to action, is another area where Korematsu can be distinguished based on how the mechanics of the internment camps related to the government’s concern.  In addition to highlighting the active conflict of World War II, the Court noted two specific elements of the Japanese internment camps that influenced its decision.  The first was the short of amount of time the government had to make a full and complete decision before evacuating Japanese citizens, out of fear that Pearl Harbor was the first sign of a West Coast invasion.  Once again, this concern is not present today since the Muslim registry is not a knee-jerk reaction to a suspected invasion of Muslim immigrants.  The second influencing factor was the temporary nature of the internment camps, where the Court noted that the evacuation was not meant to be permanent, but only until the active military situation could be resolved.  Although this may seem like a minor detail, the fact that a Muslim registry is permanent is a significant distinguishing factor, since the government’s specific burden under this element is whether the government’s action is the “least restrictive method” of carrying out the policy.  When applying this test, the Court has not been afraid to suggest alternatives to vet out a better way for the government to carry out its policy.  While the Court in Korematsu deferred to the government’s decision in active war, it is hard to see this Court, which repeatedly invalidated George W. Bush’s decisions on Guantanamo Bay following September 11th, would give the same deference.  Simply put, the surrounding factors and mechanics of the government action do not equate to surviving the same test under the Equal Protection Clause.

Lastly, it is important to note that although Korematsu has not been overruled, the belief that it still serves as binding precedent is the kind of stupidity that can only result from a higher education.  The Supreme Court does not overrule precedent by its own accord, but must be presented with a case that warrants overruling the decision.  The famous case of Brown v. Board of Education overruled Plessey v. Ferguson because there was a case warranting such a decision, and the same thing goes for anti-miscegenation statutes and criminal sodomy laws.  The only reason Korematsu has not been expressly overruled is that the United States government has not proposed a full-scale racial classification in the last 40 years, which I should note, IS A GOOD THING.  In addition, not every bad Supreme Court case needs to be overruled the way that Michael Scott declared bankruptcy in the Office, as many bad cases are simply eroded over time to show that the law has changed in a different directly.  To fill the void that a lack of government deportations created in the last six decades since Korematsu, Equal Protection law has developed to such a degree that the Court is now invalidating inferred racial classifications because governments no longer makes outright classifications based on immutable characteristics.  So no, Korematsu has not been overruled, but if there is any good thing that can come from this registry, it would be that the Court could finally clear the last major black eye from the history books.


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