“History doesn’t repeat itself,” goes the old aphorism frequently attributed to Mark Twain, “but it often rhymes.”
The Trump administration plans on housing roughly 1,400 unaccompanied migrant children apprehended at the United States–Mexico border at Fort Sill, Oklahoma, Department of Health and Human Services officials announced on Tuesday. And while the HHS had requested back in June of 2018 that the Department of Defense find room at several U.S. military bases to house up to 20,000 unaccompanied minors, the selection of the 150-year-old Army base struck a nerve: During World War II, Sill was the forced home of roughly 700 first-generation Japanese residents who were detained early into the U.S. war with Japan.
The HHS characterized the Sill facility as a “temporary emergency influx shelter” designed to deal with the recent spike in border apprehensions—U.S. Customs and Border Patrol data indicates a 74 percent jump over this time last year—that has led to an excess of detainees beyond existing facilities’ capacity. The Obama administration had previously housed roughly 2,000 migrants at Sill in 2014 amid a similar spike in apprehensions, according to Time.
Even though President Donald Trump himself has pointed to Japanese internment as a historic precedent for migration bans, the comparison of internment camps with Trump‘s migrant detention centers isn’t totally perfect. In contrast to non-citizen migrants, a vast majority of the 120,000 Japanese Americans interned after 1942 were citizens, further compounding their moral and legal suffering. (Roughly 40,000 incarcerated were “Issei,” or “first generation” immigrants, and therefore ineligible for U.S. citizenship under the Naturalization Act of 1790, which was later nullified in a 1952 Supreme Court ruling.)
But it’s the family separation element of military-administered detention, a Trump-specific policy triggered by xenophobia-tinged national-security concerns, that echoes the cruelty of Japanese internment, where fathers were frequently separated from their families because of expedited and chaotic relocation orders, labor contracts, and recruitment into the ranks of the Army itself.
Family separation underscores the real outrage of Trump‘s use of Sill as a temporary home for migrant children. Despite recent attempts to finally undo the legal legacy of Japanese internment, the cruelty of family separation appears to be an indelible feature of the American ethico-political landscape; if the cruelty is the point, so it was well before Trump ever set foot in the Oval Office.
Until recently, the internment of Japanese Americans during World War II was still considered good law. President Franklin D. Roosevelt’s Executive Order 9066, which authorized the relocation of Japanese Americans on the West Coast, was upheld as constitutional by the Supreme Court in 1944 in the landmark Korematsu v. United States case, a decision that remains a blemish on American legal history. And unlike morally suspect decisions that were later overturned (see Plessy v. Ferguson, which upheld the constitutionality of racial segregation and Bowers v. Hardwick, which effectively criminalized homosexuality), Korematsu remained a valid legal decision, through this decade.
“So long as Korematsu is still technically good law, the possibility remains that government officials will invoke it to support acts of racism masquerading as national security measures,” legal scholar Richard Primus wrote of Trump‘s flurry of immigration executive orders in May of 2017. “As Justice Robert Jackson warned in his Korematsu dissent, the case ‘lies about like a loaded weapon.'”
Nearly 75 years after affirming the legitimacy of internment, the Supreme Court formally repudiated Korematsu in June of 2018’s decision in Hawaii v. Trump, which upheld the Trump administration’s ban on migration from certain Muslim-majority countries. “The dissent’s reference to Korematsu … affords this Court the opportunity to make express what is already obvious,” wrote Chief Justice John Roberts in his majority opinion, in a section responding to a dissent from Justice Sonia Sotomayor. “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.'”
But Roberts, not unlike he did in his 2012 decision upholding core elements of the Affordable Care Act, opted to dodge, duck, dip, and dive. “Whatever rhetorical advantage the dissent may see in doing so,” he wrote, “Korematsu has nothing to do with this case.”
This is, in purely jurisprudential terms, a crock of bull. Roberts effectively negated Korematsu specifically while applying a separate constitutional standard to Hawaii v. Trump, a move that essentially preserves the spirit of Korematsu by arguing that a clearly discriminatory policy was, in fact, a “facially neutral policy” regarding foreign nationals—an argument, as dissenting justices pointed out, that’s undermined by Trump‘s own Twitter feed. As Primus, the legal scholar, put it in an April meditation on his earlier article on Korematsu and the Trump travel ban, the Supreme Court reminded America that it “is perfectly capable of signing off on morally evil executive branch policies that are ostensibly (but not really) necessary for national security, even when the legal arguments for the executive branch are weak.”
In this sense, the new child migrant center at Fort Sill reveals that Korematsu lives on not just as repudiated constitutional precedent, but as an ethico-juridical foundation for the legal system itself. After all, tearing children away from their parents has been a repeated national sin: Even before Japanese internment, there was the devastation of African-American families under slavery, and the westward expansion and systematic displacement of Native American families that forced thousands of children into so-called “assimilation schools.” (The Army is, to this day, returning the remains of children to their families.)
It is the job of the Supreme Court, as Marbury v. Madison put it, “to say what the law is.” When it comes to Trump, Roberts, and the long shadow of Korematsu, consider Maya Angelou’s advice instead: “When someone tells you who they are, believe them.”
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