I’m not going to lie to you. I’m here to implore you—to exhort you—to get active—whether in small or big ways. Doing nothing is not an option. Here’s why.
We are witnessing history repeat itself. The incarceration of Japanese Americans— 77 years ago— has become more relevant than ever. We have 3 branches of government— the Executive—the Legislative—and the Judiciary—each co-equal, and each designed to be a check and balance on the other. The common thread binding what happened to Japanese Americans —and what’s happening now—is the utter failure by Congress and the Supreme Court— to hold the Executive Branch accountable to the rule of law and the Constitution.
On June 26, 2018, by a 5-4 majority, the Supreme Court in Trump v. Hawaii upheld Trump’s so-called “Travel Ban,” the thrice-revised executive orders barring entry of people from Muslim-majority nations—and which continues today to separate American families.
When Trump announced the Travel Ban in 2017, travelers having nothing to do with terrorism were detained,—U.S. residents were stranded abroad, —and families were separated. Thousands of validly issued visas were canceled. Hundreds with such visas were prevented from boarding planes or denied entry on arrival—, including refugees running for their lives—from war and terrorism who had already undergone a stringent vetting process.
Invoking “national security,” —the government claimed that a Homeland Security report justified these actions. However, not only did the government refuse to reveal this report, —but it asserted that the Court must bow to the will of the President—giving him near-absolute authority to impose—in Justice Sonia Sotomayor’s words—“an exclusionary policy of sweeping proportion.”
Citing Trump’s speeches and tweets —replete with anti-Islamic animus and calling for “a total and complete shutdown of Muslims entering the United States,”—opponents—including Japanese Americans—argued that the Travel Ban has little to do with security—and instead, was the bigoted “Muslim Ban” that Trump had promised on the campaign trail.
Echoes of 1942 when another executive order, 9066, led to the incarceration of almost 120,000 Japanese Americans. Against the challenge of Fred Korematsu, the government exhorted the Court not to “second-guess” the judgment of the military—that locking up these Americans was necessary to the nation’s safety.
Shamefully, the Court reasoned that “if the government tells us the lock-up is a “military necessity” —then who are we to question the government?” The Court abdicated its constitutional role as a check and balance on the Executive Branch,—and the result— was a civil liberties disaster.
The gravity of the Court’s surrender was underscored in 1983 when secret WWII-era Navy, FBI, and FCC reports and Justice Department memoranda surfaced —admitting that Japanese Americans had committed no wrong—posed no threat—and characterizing the Army’s claims that Japanese Americans were spying as “intentional falsehoods.” These reports were never presented to the Court, having been suppressed, altered or destroyed.
Arguably, the Court’s relegation of itself —to being a mere “rubber stamp”— opened the door for this massive fraud to occur. It stands to reason that if the courts look the other way when the President invokes “national security”—the temptation for leaders to twist the facts—to engage in falsehoods and fabrications to achieve a political end—is likely to be irresistible.
The founders of this nation understood this—so they established a system of checks and balances—to thwart the rise of kings—and tyrants.
Fast forward to the Court’s decision in Trump v. Hawaii —wherein Chief Justice John Roberts declared—“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.”
A laudatory statement to be sure, but do these words have any meaning? While repudiating Korematsu, the Court’s affirmation of Trump’s Muslim Ban—ironically reinforced one of Korematsu’s most dangerous elements—by allowing the government’s invocation of national security—to shield it—from any judicial inquiry verifying whether the Ban has any basis in fact—or reason.
The decision penned by Justice Roberts is reminiscent of Justice Hugo Black’s opinion in Korematsu. Black wrote that racial discrimination is — “odious to a free people,” —and ruled that when the government makes distinctions based upon race, — the Court must subject such distinctions to the “most rigid scrutiny” — to verify that they are based on “imminent threats to public safety.”
However, after making this laudatory pronouncement, Black failed to apply it—, dismissively concluding that putting Japanese Americans in concentration camps—had nothing to do with racial hostility— and finding that the mass round-up was a— “military necessity.” Why? “Because the military tells us so”.
Justice Roberts makes a —similar—pivot. He pronounces Korematsu “overruled,” —but in the same breath, —dismissively concludes that Korematsu has nothing to do with the Travel Ban.
Worse, despite Trump uttering the most bigoted statements in modern political campaign history since George Wallace declared “segregation now, segregation tomorrow, segregation forever”— Roberts accepts the President’s word for it —that the ban is necessary to make the country safe—turning a blind eye to all of his racist and anti-Islamic statements— and without requiring the government to disclose the Homeland Security report— claimed to contain the facts justifying the ban.
Sotomayor describes this “blind” court deference to the President as an affront to the Judiciary’s role as the independent third branch in America’s checks-and-balances democracy. “Our Constitution demands… a Judiciary willing to hold the coordinate branches to account when they defy our most sacred commitments.”
Looking back to 1944, Justice Robert Jackson warned in his scathing dissent— that “Korematsu lies around like a loaded weapon ready for the hand of any authority who could bring forward a plausible claim of an urgent need.”
The Court’s Travel Ban decision should worry every American—the Court has reloaded this weapon—and essentially imported the Korematsu precedent into a new vessel—Trump versus Hawaii.
The parallels between Korematsu and the Travel Ban are disturbing—both arose out of war, both featured the government invoking “national security” to shield its actions from judicial scrutiny— both had abundant evidence of prejudice expressed by high officials against a targeted minority— both involved hidden intelligence reports that the government refused to disclose— and both ended with the Court failing to question—whether such sweeping deprivations of fundamental freedoms were necessary for the nation’s safety—or were merely the fulfillment of racist policies and bigoted campaign promises.
Emboldened by the Court’s unwillingness to be a check on the abuse of Presidential power, Trump tweeted — no due process for undocumented immigrants, including those lawfully seeking asylum. So even Laura Bush is connecting the dots, stating— “Our government should not be in the business of warehousing children in converted box stores or making plans to place them in tent cities… These images are eerily reminiscent of the internment camps for U.S. citizens and noncitizens of Japanese descent—now considered to have been one of the most shameful episodes in U.S. history.”
Why does this matter?
It matters because “Trump sent thousands of soldiers to the border to terrorize a distant caravan of desperate migrants —and announced plans to end — [by executive order] —the constitutional guarantee of birthright citizenship”. He has separated children from their parents, —demonized American-born citizens as “anchor babies”—slashed refugee visas by more than half—and pejoratively labeled family reunification policies as “chain migration.”
Trump promised his base to build a wall. In fact—he promised that Mexico would pay for it. Two days ago—after a 34-day shutdown of the government in which Congress expressly refused to appropriate funds for his wall—Trump has declared the border a “national emergency”, attempting to seize funds by edict—and override Congress’ exclusive constitutional authority— over the purse.
Do you see a pattern here? When Japanese Americans were locked up— it was done on the basis of a phony claim of “military necessity.” —When Trump fulfilled his campaign promise for a ban on Muslims entering the country— it was based on a phony claim of “national security”. —Now Trump seeks to usurp the constitutional authority of Congress—based on a phony claim of a “national emergency.”
If neither the Congress nor the Court has the will to hold this President accountable to the Rule of Law—and if the public no longer has a common understanding of what “facts” are due to Trump’s lies, deceit, and his assault on the free press as “the enemy of the people”—Folks—this is how dictators get started.
Let me circle back to my personal plea to you. I know that I don’t have to convince any of you that Trump’s attacks on democratic institutions are unlike anything we have ever seen. I see my purpose here today as reminding you in this room —that you—have something to say about history repeating itself:
- For Japanese Americans, we’ve experienced this. —We know the consequences when there is no check and balance—on the unbridled exercise of power by a President.
- The legal principle that the courts should bow to the will of the Executive Branch when it invokes “national security”—started during the Chinese Exclusion Act cases of 1882—was extended through Korematsu—and has been reaffirmed in Trump v. Hawaii. This principle will again be before Courts in Trump’s manufactured “crisis” at the border.
- A great many Americans in the U.S. today— especially Asian Americans—Chinese, Korean—South Asian—are the direct result of 1960’s reforms in immigration policy that led to the reunification of their families—now pejoratively labeled “chain migration” — which Trump proposes curtailing.
- Moreover, —but for the availability of refugee visas for families running for their lives, Asian Americans of Southeast Asian ancestry—Vietnamese, Laotian, Cambodian, Hmong—would not be here. —Jews and other marginalized groups—certainly understand the importance of refugee visas.
My point is that if we look back into our own family histories—we are one or two degrees of separation from the immigrants, refugees, and Muslims currently in the cross-hairs.
What are we to do? Well, speechifying is not going to get the job done. We need to get involved. I realize that most of us cannot travel to Maine, Colorado, Arizona, the Central Valley, or the Midwest to register voters or do voter education.
But you can support organizations— that are fighting to preserve the Rule of Law. We can give and raise money. You have $25? Throw a party for you and your friends—ask for $25 each–$5 for the booze, and $20 to support advocacy organizations, citizenship classes, voter registration and education, etc. If you need suggestions of how you can get involved—talk to me.
Yes, this takes commitment, it takes sacrifice, it takes some pain, and to be sure, it will take some of your time—and money.
But the country is going in a dangerous direction— history is repeating itself—
And know that in making things right— nothing is free.
Remember the words of Frederick Douglass: — “Power concedes nothing without a demand—it never has and it never will. You may not get all that you pay for this in this world— but you must certainly pay for all that you get.”
So today— we’re making a down payment for Justice.
No one is above the law—not even a President
We’re going to do what generations have done before us—
And do the work necessary to change this culture—
Change hearts and minds—
And take our country back.
There is no time to lose.
Doing nothing is not an option.
Let’s —get —busy.