Amicus With Dahlia Lithwick | "The Specter of Korematsu"

Episode Date: November 30, 2016

Overview

In this special midweek episode, host Dahlia Lithwick explores growing anxieties about constitutional norms amidst the early Trump era. Topics include President-elect Trump's provocative statements on flag burning and citizenship, concerns about potential business conflicts (the Emoluments Clause), voting system integrity, and the alarming precedent of Korematsu v. United States in the context of rumors about a "Muslim registry." Dahlia's guests, Senator Chris Coons (D-Delaware) and former Acting Solicitor General Neal Katyal, provide in-depth legal and historical analysis, giving listeners a clear-eyed perspective on threats to constitutional principles.

Key Discussion Points & Insights

Erosion of Constitutional Norms Under Trump

Guest: Senator Chris Coons

• Trump’s inflammatory tweets ([01:31]-[04:07]):
  • Trump's suggestion to strip citizenship/jail flag burners: "Alarming messages" showing "dangerous disregard for the First Amendment... and our concept of free speech and citizenship."
  • Importance of upholding "the right to be outrageous and to say things we dislike," as a demonstration of America's core freedoms.
• Balancing concern and focus ([04:07]-[07:59]):
  • Coons warns against dismissing tweets as trivial ("wallpaper stuff"): "We can't disregard alarming tweets like this that suggest either a real commitment to undermining constitutional values or an indifference to them."
• Business conflicts and the Emoluments Clause:
  • Trump’s global business interests present "real and significant" conflicts with potential for foreign influence.
  • “The idea that Donald Trump's immediate family will directly run this business empire and it will have no impact on his conduct or on the conduct of our diplomacy... flies in the face of obvious reality.” ([07:16])

The Emoluments Clause & Legal Uncertainties

• [07:59]-[09:56]: Dahlia and Coons discuss whether the Emoluments Clause is effective for challenging presidential conflicts of interest.
  • Coons: The clause, though "not recently applied," reflects "a really important standard" that can't be ignored when facing threats to presidential independence—even if it creates new legal challenges and debates between "originalists and contextualists."
  • “If we claim fidelity to the Constitution... we cannot take such a clear section of the Constitution and utterly ignore it when there are real threats.” ([09:41])

Voting System Integrity & Shelby County

• Confidence in the system ([09:56]-[14:07]):
  • Coons refutes the idea that the US voting system is fundamentally rigged, contrasting US elections with sham democracies abroad.
  • Acknowledges “real concerns” about voter suppression, especially affecting minorities, post-Shelby County v. Holder decision.
  • “[Shelby County] has been in many ways profoundly undermined... we've seen a dreadful and dramatic increase in intentional efforts ... to suppress the vote.” ([13:21])
• Partisanship and the Voting Rights Act:
  • Only one Republican supports restoring preclearance protections.
  • Coons: This lack of bipartisan support is "deeply regrettable, even shameful." ([13:55])

The Nomination of Jeff Sessions for Attorney General

• Sessions’ record and Senate scrutiny ([14:51]-[16:15]):
  • Coons notes Sessions' history of opposition to the Voting Rights Act and support for Shelby County, confirming these issues will be central in confirmation hearings.
  • "An Attorney General is supposed to be independent, not a partisan ... and it's my hope that Senator Sessions has a sense of that." ([15:54])

The Specter of Korematsu & the Muslim Registry Debate

Korematsu Cited as Precedent for Discriminatory Registries

Background ([16:22]-[17:45]):

• Trump surrogate Carl Higby mentions WWII Japanese internment as precedent for potential "Muslim registry" proposals.
• This causes renewed scrutiny of Korematsu v. United States (1944).

Interview with Neal Katyal, Former Acting Solicitor General

Historical overview and legal analysis ([19:04]-[27:38]):

• Korematsu’s (and predecessors') dark legacy:
  • The mass internment was based on racial animus, not legitimate threat—intelligence at the time, including reports by ONI and J. Edgar Hoover, rejected the military necessity rationale.
  • Government lawyers actively suppressed exculpatory evidence before the Supreme Court.
  • "[The Justice Department] was told, 'It occurs to me that any other course of conduct might approximate the suppression of evidence.' ... What does the Solicitor General do? Nothing. He orders his deputy to double down on these security arguments." ([22:22])
• Discrediting Korematsu:
  • Katyal: “It’s a precedent that’s based, frankly, on lies from the Executive Branch to the highest court of the land. ... There’s probably not many cases that I’d want to cite less than Korematsu v. United States.” ([24:47])
  • In 1988, a District Court effectively overturned Korematsu in light of the government’s deceit.
• Personal involvement and responsibility ([25:20]-[27:38]):
  • While in the Solicitor General's office, Katyal formally apologized for the DOJ’s misconduct: "There’s a heightened obligation if you’re a government lawyer to be very forthcoming and tell both sides of the story."
  • Katyal is skeptical any “Muslim registry” could survive Supreme Court scrutiny, regardless of its composition: “I could not imagine any nine justices upholding the types of proposals that the Trump advisers were calling for last week.” ([27:28])

Legal Limits of Discriminatory Registries

• Neutral laws vs. discriminatory intent ([27:38]-[30:35]):
  • Government has latitude in making national-origin distinctions when setting immigration policy; the danger is using neutrality as a pretext for targeting a religion.
  • “[If] you have a formally neutral law ... that has effectively the intent of targeting a certain religion, that’s unconstitutional.” ([28:46])
  • Cites Supreme Court precedent (Church of the Lukumi Babalu Aye v. City of Hialeah, 1993) on banning laws with religious animus.

Notable Quotes & Memorable Moments

• Coons on upholding free speech:
  “It’s exactly in upholding people’s right to be outrageous and to say things we dislike, that we demonstrate our fidelity and our passionate commitment to those foundational rights.” ([03:37])
• Coons on Trump’s conflicts:
  “The idea that Donald Trump's immediate family will directly run this business empire ... flies in the face of obvious reality.” ([07:16])
• Katyal on Korematsu’s legacy:
  “It’s a precedent that’s based, frankly, on lies from the Executive Branch to the highest court of the land.” ([24:47])
• Katyal on constitutional guarantees:
  “These are so fundamentally un-American proposals. They are so deeply in tension with the text and structure and the rights guaranteed by our Constitution.” ([27:13])

Key Timestamps

• [01:31] — Coons on Trump’s inflammatory tweets and free speech
• [07:16] — Coons on Trump’s business conflicts and the Emoluments Clause
• [13:21] — Coons on Shelby County and voter suppression
• [16:22] — Korematsu re-enters public discourse amid registry talk
• [19:45] — Katyal lays out Korematsu’s flawed precedent
• [24:47] — Katyal: "It's a precedent that's based, frankly, on lies..."
• [25:30] — Katyal describes government apology and the importance of candid legal advocacy
• [27:28] — Katyal: Even a Trump-stacked Supreme Court wouldn't uphold registries
• [28:46] — Katyal explains the constitutional limits of seemingly neutral laws with discriminatory intent

Episode Tone and Language

• Respectful, measured, and deeply legalistic.
• Host and guests are candid, but the discourse remains analytical, referencing both constitutional doctrine and historical precedent.
• The mood is urgent but not alarmist, focused on defending constitutional principles rather than indulging in political theatrics.

Conclusion

This Amicus episode delivers a sobering but empowering lesson on constitutional resilience and vigilance. Listeners are reminded that established principles and past legal miscarriages (like Korematsu) must guide current debates over civil liberties and presidential power, especially under unconventional or norm-breaking administrations. The legal experts stress that even deeply flawed precedents and anxious moments can be met with clear-eyed advocacy and faith in the fundamental protections of the Constitution.