From Korematsu to the Muslim Ban: Why Nothing Has Changed
On February 9th, 2017, the Ninth Circuit Court of Appeals unanimously ruled against granting an emergency stay of the district court’s temporary restraining order on Trump’s Executive Order 13769. This Executive Order is referred to many as the immigration ban, travel ban, and/or the Muslim Ban; the latter being the most accurate depiction of the true purpose of the Order. Therefore, I will refer to the Order for what it is: the Muslim Ban.
The Muslim Ban suspended entry of immigrants from seven Muslim-majority countries — Syria, Iran, Iraq, Libya, Sudan, Yemen and Somalia — for 90 days, stopped all refugees from entering the country for 120 days, and banned Syrian refugees indefinitely. The Court of Appeals rejected the US government’s argument that the district court’s temporary restraining order of the Muslim Ban should be lifted for national security purposes. While this ruling was applauded and hailed as a win in the fight against the Trump administration, we should be less preoccupied in hyping up this decision and more concerned with the static oppression minority groups continue to face in this country. Actions by the US government, such as this clearly discriminatory Muslim Ban, are not uncommon to this country. This is a reality that should be alarming to all Americans.
In 1942, President Roosevelt signed Executive Order 9066, which authorized the internment of thousands of good standing American citizens who were of Japanese Ancestry, along with other recent immigrants from Japan. This gave the military the go-ahead to enforce Civilian Exclusion Order №34 of the US Army, banning anyone of Japanese descent from a 50–60 mile wide-area on the West Coast, and forcing the Japanese to internment camps. These actions lead to one of the most facially discriminatory decisions of the United States Supreme Court.
The Court in Korematsu v. United States ruled in favor of allowing the US government to forcibly remove a group a people from an area simply based on their race. The Opinion of the Court began by declaring, “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect . . . [and] courts must subject them to the most rigid scrutiny.” Nonetheless, the Court concluded that the racially discriminatory Executive Order was within the federal government’s power even under this “most rigid scrutiny” standard.
The Muslim Ban and the Executive Order that lead to Korematsu have many similarities. They were both largely motivated by discrimination (racial and religious), wartime hysteria, and failure of this country’s administration. Yet, we must not forget that Trump signed the Muslim Ban 75 years after Roosevelt’s Executive Order. Why has nothing changed?
One reason might be that we live in a reactionary society. We are programed to think that every time something happens to further the liberation movement of those most oppressed in our society that we should applaud with excitement. How can we say that we live in a progressive democracy when we are living through the same social hardships we have been fighting for decades? The truth is, we are just being looped in a continuum of oppression. We really haven’t made much progress. We can’t call ourselves a progressive society because our actions aren’t proactive. Rather, all the outcomes we see are reactionary.
Reactionary responses are dangerous. They do nothing to advance the movement of those oppressed in our society. In short, reactionary responses simply assure that we don’t go backwards. As a result, we then find ourselves in the same spot we always were. Nothing changes. We celebrate the “wins” we achieve in the struggle for social justice, but we are still at a loss.
The recent Ninth Circuit decision on the Muslim Ban is praised as one of these “wins” for our society. But how can we simply look past what lead up to the execution of this order in the first place? Even though our judicial system reached a different conclusion regarding the Muslim Ban compared to that of the decision in Korematsu, the underlying socio-economic politics that lead to the execution of both orders remains the same. Applauding the decisions of the courts that seem to be in favor of our cause(s) is not enough. We should instead be questioning how and why our country is in the same place it was almost a century ago.
Further, we must question what our role is in perpetuating the status quo of the oppressive, discriminatory, and reactive actions of our society. In particular, the power and role of one group of professionals has recently been hailed to possess the necessary skillset to challenge the current oppressive institutional structures: lawyers. Especially following the decision on the Muslim Ban, the work lawyers do has been vastly celebrated in advancing the social justice movement.
Lawyers have power. Lawyers have knowledge. They have accessibility to people and places untouchable to non-lawyers, as well as influence over society. This is precisely what draws many individuals, myself included, to law school: the misconception that as a lawyer we have the power to challenge the status quo. But as lawyers, we are the status quo. The whole legal institution is revolved around preserving the doctrine of stare decisis. That is, determining the answers to legal questions based on precedent. This static nature of the legal profession is something that has been bothering me for quite some time. As an aspiring lawyer, it becomes difficult to realize that the value we place, and that society places, on our degree can sometimes do more harm than good.
The other day I had a professor from my undergraduate years approach me at a coffee shop. She asked how law school was going and added, “it’s a good time to be a lawyer…lawyers are doing great work and really helping us during these times.” For context, this professor focuses on migration issues and was referring to the Ninth Circuit’s ruling against Trump’s Muslim Ban.
Following the interaction I had with my former professor I really grappled with the idea that by becoming a lawyer I am just feeding into the propaganda of this nation’s legal profession. Why are people praising the lawyers who won the case, instead of focusing on the Islamophobia that prompted the Muslim Ban in the first place? How is it feasible for lawyers to stay out of the spotlight in a society that values the work of lawyers more than the lives of people on the ground? I don’t know the answer, and I don’t know what to do about it, but I was given some good starting points. Gyasi Ross, a lawyer and Native Nations activist, and Nikkita Oliver, a lawyer and community organizer, offered pointers as to what we can do as lawyers:
1. As lawyers, we need to be creative. The creation of ideas, ideals, and new institutions will challenge the status quo.
2. As lawyers, we need to trust the brilliance of non-lawyers. Lawyers cannot let their degrees get to their heads.
I can’t say these are simple pointers to follow because I know I will struggle with them, but I hope that others recognize the importance of realizing that solely sticking to the law is not enough to bring about real social change. We cannot merely just stand by and observe another Korematsu/Muslim Ban situation in our country.
