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The travel bans were never about national security

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Act I:

The Proclamation does not fit this pattern. It cannot be said that it is impossible to “discern a relationship to legitimate state interests” or that the policy is “inexplicable by anything but animus.” Indeed, the dissent can only attempt to argue otherwise by refusing to apply anything resembling rational basis review. But because there is  persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification.–Roberts, CJ, Korematsu II (2018)

Act II:

Wow, who could possibly have seen that Trump’s travel bans were justified by his frequently stated racist anti-immigration beliefs rather than by transparently nonsensical and pretextual national security concerns except everyone who doesn’t see his professional role as abetting the flagrant racism of Republican public officials?

As the opinion in Korematsu II that was not an instantaneous disgrace to the Supreme Court of the United States put it:

Although a majority of the Court in Korematsu was willing to uphold the Government’s actions based on a barren invocation of national security, dissenting Justices warned of that decision’s harm to our constitutional fabric. Justice Murphy recognized that there is a need for great deference to the Executive Branch in the context of national security, but cautioned that “it is essential that there be definite limits to [the government’s] discretion,” as “[i]ndividuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support.” Justice Jackson lamented that the Court’s decision upholding the Government’s policy would prove to be “a far more subtle blow to liberty than the promulgation of the order itself,” for although the executive order was not likely to be long lasting, the Court’s willingness to tolerate it would endure.  

  In the intervening years since Korematsu, our Nation has done much to leave its sordid legacy behind. Today, the Court takes the important step of finally overruling Korematsu, denouncing it as “gravely wrong the day it was decided.”  This formal repudiation of a shameful precedent is laud- able and long overdue. But it does not make the majority’s decision here acceptable or right. 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, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one “gravely wrong” decision with another.  

 Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments. Because the Court’s decision today has failed in that respect, with profound regret, I dissent.

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