Abstract

Excerpted From: Isaac Bloch, A Case Against Mass Deportation: The Japanese American Internment Camps and Recent Treatment of Korematsu, 77 UC Law Journal 375 (February 2026) (352 Footnotes) (Full Document)

During the first Trump administration, the Japanese American Citizens League filed an amicus curiae brief before the Supreme Court. The plaintiff’s constitutional argument was straightforward: The Court should invalidate restrictions on visa holders from certain countries, also known as the “Muslim ban,” as an anathema to the Establishment Clause of the First Amendment. The League’s brief was persuasive in this context because of the parallels it drew between the executive’s religiously motivated policies and the racially discriminatory World War II internment camps. Over seventy years earlier, the very same organization had urged the Supreme Court to declare unconstitutional the mass detention of over 100,000 immigrants and U.S. citizens of Japanese descent. Once again, the League was sounding the alarm. In both cases, the executive had eviscerated certain rights without any individual hearings, and with scant proof that the detentions aided its interest in national security.

In Korematsu v. United States, the League was unsuccessful in persuading the Court to invalidate the internment camps. Decades later, in Trump v. Hawaii, their arguments supported the Court’s decision to overrule Korematsu, although this may have felt like a pyrrhic victory. Nevertheless, the legal strategy merits consideration. Scholarly attention has largely focused on the judicial and extra-judicial processes through which Korematsu has become part of the anticanon of American jurisprudence. This category of cases includes decisions that are infamous for being constitutionally and ethically indefensible. Through this lens, some have further suggested that Korematsu was already “doctrinally irrelevant” prior to being overturned. Irrelevance may fairly explain courts’ avoidance of Korematsu as a precedent for upholding governmental restrictions of liberty. Advocates’ and jurists’ use of the decision has charted a different trajectory, however, and the case has repeatedly been invoked to map the outer bounds of executive authority. In this way, Korematsu serves as a guidepost for how to avoid the grave wrongs of the past. Rather than banishing the decision into obscurity, the formal abrogation of Korematsu supports its deployment as a negative precedent at both trial and appellate courts. Principles that flow naturally from the doctrine of stare decisis, and which go beyond the framework of the anticanon, help provide a theoretical foundation to the way courts have integrated Korematsu into their constitutional analysis since Hawaii.

The constitutional viability of this strategy has additional urgency, given the ramifications of the Trump administration’s stated goal to detain and deport millions of parents, spouses, children, neighbors, and workers who are noncitizens. During his most recent Presidential campaign, President Donald Trump made deporting immigrants--who are deeply embedded in American life--his flagship policy issue. When President Trump discussed invoking the Alien Enemies Act as part of this plan, he took a page directly from President Franklin Delano Roosevelt’s detention of immigrants and U.S. citizens of Japanese descent. During World War II, U.S. citizens of Japanese descent served overseas while their parents were detained and subjected to the Alien Enemies Act back home. Currently, the psychological toll of immigration detention on individuals, families, and communities is already difficult to overstate. Separating parents from their young children, widely condemned in international law, is a routine form of trauma inflicted by the U.S. immigration enforcement system. Nevertheless, courts have afforded enormous deference to the executive’s authority to detain non-citizens while their civil immigration cases are pending.

As an inroad into this analysis, Part I of this Article provides a case study of Reno v. Flores, in which Justice Stevens’ dissenting opinion applies Korematsu to the immigration detention context. The Flores case involved an early and groundbreaking challenge to the detention of unaccompanied children--minors who arrive to the United States without a parent or legal guardian present. In the 1990s, the government used security as pretense to justify the abusive treatment of thousands of children who remained detained even when a relative, such as a grandparent, aunt, or uncle, was available to care for them. When it came time for federal courts to review this detention scheme, judicial deference to the Immigration and Naturalization Service (“INS”), and the government’s failure to disclose important evidence of the detention centers’ procedures, shielded federal officials’ treatment of minors from proper review. In a footnote, Justice Stevens’ dissent drew parallels between Korematsu and the majority’s failure to properly uphold the minors’ constitutional due process rights.

The role that Korematsu played in Flores can be understood as part of its status in the anticanon, and this framework is reviewed in Part II. Certain decisions are nearly universally recognized as nadirs in our nation’s jurisprudence. These cases include Plessy v. Ferguson, Lochner v. New York, Dred Scott v. Sandford, and Korematsu v. United States. From time to time, courts use these condemned cases for their value as negative precedent, to paint an opposing position as committing a similar error to one repudiated in the past decision, and to help frame what any interpretation of the Constitution should endeavor to avoid. Part II systematically reviews the way Korematsu has been deployed by the Supreme Court, as well as certain lower courts, after Korematsu was overruled in Hawaii.

When taking stock of Korematsu as a resource for constitutional analysis, Part III goes beyond the category of the anticanon and attempts to theoretically ground invocations of overturned precedent in basic principles of constitutional interpretation. Although reliance on overturned precedent seems to stand in contrast to principles of common law adjudication, this Article argues that the two are not in conflict. Once an appellate court overcomes the presumption of a past decision’s validity and abrogates the decision’s holding, stare decisis suggests a prima facie conclusion that the overturned holding can now serve as a cautionary source of law for future adjudicators. This inference carries additional force when the overturned case represents a particularly egregious moral wrong, as in the situation of the anticanonical cases. However, the category of negative precedential decisions outlined here is not equivalent to the set of anticanonical decisions. Part III considers the limits and normative force of courts’ use of negative precedent, taking account of the institutional role of the Supreme Court.

Finally, Part IV of the Article analyzes the political reality of mass deportations in light of Korematsu and the history of litigation surrounding the Japanese American internment camps. Up through his inauguration, Trump repeatedly alleged that immigrants pose a dire threat to national security, which served as his primary justification for declaring a national emergency to increase deportations. Like the assertion of military necessity during World War II, there is no clear evidentiary basis for declaring a national emergency. And as with the demonization of individuals of Japanese descent, specific officials in Trump’s administration are marshaling racial prejudices against immigrant communities and their U.S. citizen children. In legal challenges that discuss these and related issues, courts must carefully scrutinize how much deference to afford the executive’s determinations of military necessity, national security, and other uses of its emergency powers.

Given the rapidly evolving implementation of Trump’s campaign promises, there are limits to this Article’s analysis, among other important caveats that bear mentioning. The Article draws on legal and factual developments that are current through the second Trump administration’s inauguration. Additionally, when challenging immigration policies, the use of detention must be distinguished from the question of whether any individual can be deported. This Article primarily considers the former. In Korematsu, the Court parsed various policy prongs to allow it to narrowly rule on a military evacuation order, rather than correctly considering that order as an integral component of a comprehensive scheme that inevitably mandated detention for individuals of Japanese descent. By primarily discussing immigration detention, rather than deportation, I do not mean to commit a similar mistake. Although immigration detention and deportation go hand in hand, deportations often lead to extreme harms that go beyond detention. Furthermore, attempting to clarify the precise constitutionality of immigration detention, as permissible under the plenary power doctrine or as an infringement of individuals’ due process rights, is also beyond the scope of this Article. Rather, this Article aims to review the factual history of the Japanese American internment camps and the recent judicial treatment of Korematsu to assess whether that decision can be rigorously deployed as a bulwark against the executive’s mass deportation of immigrants.

Many precedential decisions impose prohibitions against government actors. Overturning a precedent similarly establishes a prohibition on what form the law itself can take, and what can and cannot be a permissible expression of judicial authority. For Korematsu, the overturned precedent holds a unique type of consensus within the legal community as the embodiment of what cannot be condoned as a correct application of certain constitutional principles. In this way, the case can and should guide the court on how to properly judge similar matters. Indeed, on at least one occasion, it has already played a dissenting role within the Supreme Court’s jurisprudence on immigration detention.

[ . . . ]

Insofar as the doctrine of stare decisis holds sway, it stands alongside a shadow of overturned precedent, which has its own unique value for adjudicating what falls outside the law. Of those constitutional decisions that were truly egregiously wrong, courts have every reason to carefully and concretely consider their legacy. Indeed, much of this analysis is already taking place in opinions issued at every level of the federal judiciary.

Courts’ continued discussions of Japanese American internment helps emphasize certain basic principles. A need for judicial restraint, however valid, cannot permit unlimited deference to the executive’s bare claim that a national emergency exists. Considering this and the forces that allowed for, and acquiesced to, the program of Japanese American internment, courts will take note of the fact that we are not currently defending any foreign attack on U.S. soil. They should also recognize that there is no evidence to support the blanket targeting of immigrants in the name of national security or a similar invocation of the executive’s emergency powers.

At the same time, rights such as the liberty interest in being free from detention must be central considerations in the context of due process. Despite the heightened tenor of immigration rhetoric, this principle need not be controversial. And within the long arc of history and frequent fluctuations in immigration policy, the universal repudiation of Korematsu stands for this basic constitutional value. Courts have the ability to mandate individualized determinations for immigrants who are detained, which they often do through habeas corpus petitions. Individual hearings such as these, at a minimum, must be kept open and available in the context of immigration. Within the framework of our Constitution, the government cannot find an adequate interest to counterbalance the calls of thousands of individuals to be free from detention.

Isaac Bloch was an Immigrant Justice Corps Fellow when the Article was published. He earned a B.A. from Yale University and a J.D. from Georgetown University Law Center.