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Hirabayashi, Yasui, Korematsu families file brief in Supreme Court in opposition to travel ban

September 18, 2017

The children of Gordon Hirabayashi, Minoru Yasui, and Fred Korematsu today filed an amicus brief in the U.S. Supreme Court opposing Executive Order 13780, the Trump administration’s travel ban on nationals from six Muslim-majority nations, pointing to the unjust incarceration of Japanese Americans during World War II as an urgent warning against encroachment of presidential power.

The brief was filed on behalf of Jay Hirabayashi, Holly Yasui, and Karen Korematsu by the Fred. T. Korematsu Center for Law and Equality at the Seattle University School of Law in partnership with the legal teams that gained exoneration of three men in historic coram nobis petitions in the 1980s. Attorneys from Akin Gump Strauss Hauer & Feld LLP provided pro bono counsel. 

The children of the former litigants remind the Supreme Court that during World War II, the Court’s near-complete deference to the executive branch and corresponding failure to scrutinize Executive Order 9066 resulted in upholding the constitutionality of 120,000 Americans being forcibly incarcerated because of their racial ancestry, a decision now universally condemned as a civil liberties disaster. 

President Trump has argued that his Executive Order is not reviewable by any court. In defending the travel ban, the government asserts that federal courts may not second-guess the executive branch’s decision to deny visas and suspend the entry of refugees from six Muslim-majority nations based on threats to national security. 

The brief urges the Court to heed the lessons of Hirabayashi, Yasui, and Korematsu and argues that submission to the executive branch is incompatible with the protection of fundamental freedoms. The brief also argues that the government’s present assertion that the courts defer to the executive branch is not rooted in constitutional tradition, but relies on previous court decisions that were based on racism and xenophobia. If the Court accepts the government’s assertion, the brief states, our country is at risk of repeating the injustices stemming from Hirabayashi, Yasui, and Korematsu.

Earlier this year, both the 9th Circuit and 4th Circuit Courts of Appeals ruled that it is the duty of the judiciary branch to hold the president accountable to the requirements of the law and the Constitution—and that claims about threats to national security cannot justify infringement of civil liberties.

Numerous prominent civil rights organizations stand with Hirabayashi, Yasui, and Korematsu on the brief, including Asian Americans Advancing Justice, Asian American Legal Defense and Education Fund, Hispanic National Bar Association, Japanese American Citizens League-Honolulu Chapter, LatinoJustice PRLDEF, National Bar Association, and South Asian Bar Association of North America.

The amicus brief is available here

Robert S. Chang 
Fred T. Korematsu Center for Law and Equality
changro@seattleu.edu
206-398-4025 

Lorraine K. Bannai 
Fred T. Korematsu Center for Law and Equality
bannail@seattleu.edu
206-398-4009