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Keywords

Supreme Court, racial classifications, constitutional analysis, strict scrutiny

Abstract

In his article, Professor Mark Killenbeck defends both Korematsu v. United States and Trump v. Hawaii on their own terms, albeit on narrow grounds. He goes on to conclude that comparisons of the two decisions don’t hold up. Killenbeck has authored a thoughtful and contrarian paper, but I’m not sold. In my view, Korematsu simply isn’t worth saving; in fact, a more complete repudiation of the internment decisions is overdue. Trump v. Hawaii, too, must also be revisited at the earliest opportunity and its more alarming features that abet presidential discrimination against non-citizens rejected. Moreover, I believe that comparisons between the two disputes are warranted. When the two controversies are brought together, they underscore several themes about our prevailing constitutional order: whether during war or peacetime, a president can harm politically unpopular minorities through the law in a variety of ways, judges consistently have difficulty reaching consensus to do anything about the unequal burdens imposed by presidential policies on out-groups, and as a result, we need stronger reforms that can prevent such harms in the future.

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