BY HANK REICHMAN

If there was a silver lining to be found in the cloud of partisan obfuscation and skewed logic that was Chief Justice John Roberts’ ruling in Trump v. Hawaii, which upheld the president’s notorious Muslim ban, it was the decision’s formal repudiation of the Supreme Court’s infamous 1943 decision in Korematsu v. United States, which validated the government’s Japanese internment camps.  Although Roberts claimed that “Korematsu has nothing to do with this case,” he took the opportunity of Justice Sonia Sotomayor’s powerful dissent, which invoked that case, to forthrightly declare: “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.’”

Of course, Sotomayor (who was joined by Justice Ginsburg) was not the only one to conclude that in fact Korematsu had everything to do with this case.  As Harold Koh, Sterling Professor of International Law and Co-Director of the Rule of Law Clinic at Yale Law School, put it, “only a credulous majority could convince itself” that the two cases had no connection “in light of the history we have all just lived through.”  Koh argued that the two cases each “invoked an amorphous national-security threat to justify a sweeping discriminatory policy that significantly limited the freedom of a particular group. In both cases, the government invoked a grossly overbroad group stereotype that presumed that membership in that group, standing alone, signaled a potential hidden desire of every group member to harm the United States.”  (Koh’s destruction of Roberts’ argument is worth reading in its entirety, as is Sotomayor’s dissent.)

But the opinion is even worse than that.  For while Roberts repudiated Korematsu, his understanding of that case and of why it was incorrectly decided, left open the door for outcomes even more dangerous than Trump’s Muslim ban.  Here’s how Roberts explains Korematsu’s flaw: “The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority.”  Of course, Korematsu infamously concluded that the Japanese were relocated not because of race but “because we are at war with the Japanese empire”–a twisted logic wholly consistent with Roberts’ own argument about the Muslim ban.  But, more important, consider the limitation posited by the critical phrase “solely and explicitly on the basis of race.”  According to this argument, it could be lawful to forcibly relocate U.S. citizens to concentration camps on another basis than race, say their political affiliations or opinions.  And that’s not so far-fetched given that into the 1970s the FBI maintained lists of alleged Communists and Communist sympathizers to be rounded up in case of a “national emergency.”  And one wonders what Roberts would have said about Nixon’s “enemies list,” had it been used to detain individuals in camps, or if the TSA’s “no-fly list” were employed as a basis for such imprisonments.  In other words, if Roberts’ repudiation of Korematsu is a silver lining in the dark cloud of his opinion that very lining itself contains an even more ominous cloud — the threat now hanging over the country that concentration camps based on political activity, dissenting viewpoint, or other non-racial factors could be deemed legal and within the scope of presidential power.

That Trump v. Hawaii is not limited to validating discrimination against foreign nationals by virtue of their religion or ethnicity but could further threaten political expression, with serious implications for higher education, is suggested as well by Roberts’ discussion of the case of Kleindienst v. Mandel.  In that 1972 case the attorney general denied admission to the U.S. of the Belgian Marxist Ernest Mandel, who had been invited to speak at Stanford University and elsewhere.  Mandel was found ineligible for admission under provisions of the Immigration and Nationality Act of 1952 barring those who advocate or publish “the economic, international, and governmental doctrines of world communism.”  Faculty members sued under the First Amendment and, according to Roberts, the Supreme Court

acknowledged that their constitutional “right to receive information” was implicated.  But we limited our review to whether the Executive gave a “facially legitimate and bona fide” reason for its action.  Given the authority of the political branches over admission, we held that “when the Executive exercises this [delegated] power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification” against the asserted constitutional interests of U. S.citizens.