Late last month, the U.S. Supreme Court made an important immigration ruling that will one day be looked upon as another example of our nation landing on the wrong side of history.
February’s Jennings v. Rodriguez decision declared that immigrants seeking asylum can be detained indefinitely without periodic hearings. For those who follow legal issues, this case is the new Korematsu v. United States.
Often viewed as a dark stain on our past, the 1944 Korematsu decision doomed tens of thousands of Japanese Americans to internment camps during World War II. It found that the Constitution — a document designed to protect freedom and liberty — did not prevent the indefinite detention of these people because of their ethnicity.
That internment was such a mistake that the federal government issued an apology decades later. It prompted President Ronald Reagan to sign the Civil Liberties Act of 1988, which paid out compensation to the surviving victims of the camps.
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If officials of the federal government were willing to shell out money, they must have really meant that apology.
As an initial matter, Jennings and Korematsu dovetail with one another, as they are about nearly-identical subjects. Both protect the federal government’s use of concrete prisons, where people go in but do not necessarily come out — exactly what the Supreme Court approved of in both cases.
My eyes are not the only ones to recognize the similarity between immigration detention and the Japanese internment. California State University professor Satsuki Ina, herself a survivor of the wartime camps, viewed the U.S. family immigration detention centers of today. In response, she wrote the essay, “I know an American ‘internment’ camp when I see one” for the American Civil Liberties Union blog.
The tone of both Supreme Court opinions is strikingly similar as well. Justice Hugo Black, writing for the majority in Korematsu, ignored the evils of internment, instead arguing that if the government wants to detain Japanese-Americans, it should have the right to do so without the Constitution standing in its way.
Why? Because it was politically expedient for the war effort. This may have been true at the time. But Justice Frank Murphy’s dissent accurately pointed out the majority’s decision “falls into the ugly abyss of racism,” which the 14th Amendment was enacted to specifically prevent.
Similarly, Justice Samuel Alito’s rhetoric in the Jennings opinion ignored any interest in constitutional liberty that today’s asylum seekers may be entitled to. Writing for the majority, Alito explained that the Supreme Court should not even ask the constitutional question of the detained immigrants’ rights to be free.
Why? Because it is politically expedient to detain immigrants indefinitely while we try to deport them. So both opinions approved of indefinite detention because it was the easy thing to do.
But the comparison is best demonstrated by Justice Stephen Breyer’s question in his powerful Jennings dissent: “Would the Constitution leave Government free to starve, beat, or lash those held within our boundaries? If not, then … how can the Constitution authorize the Government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States?”
It is striking that that question can just as easily be aimed at Jennings as at Korematsu. The reason is clear: The two cases uphold darkly similar practices in American history.
Daniel Hatoum is an attorney and civil rights fellow in New York City. He is a former resident of Salina.