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Japanese Internment Gets A New Breath of Life in the Eastern District of New York

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10 Responses

  1. Jay says:

    Professor Muller, though I find the Turkmen opinion troubling, I don’t read it as authorizing treatment equivalent to the World War II era treatment of the Issei. The Turkmen court held only that the Constitution does not limit pre-deportation detention of illegal aliens when that detention is based on religion, ethnicity, or national origin. It did not permit detention of permanent residents or other legal aliens on any of those grounds. Compare that holding to the text you quote from the 1988 Civil Liberties Act, which refers explicitly to “citizens and permanent residents of Japanese ancestry.” Am I missing something?

  2. Eric Muller says:

    I see nothing in the Turkmen opinion that suggests a greater judicial capacity to hear claims of selective enforcement brought by lawful than unlawful aliens. The line that Gleeson draws is a line between citizens and aliens. See pp. 78-79 of the opinion:

    There is thus nothing outrageous about the plaintiffs’ claim of national-origin discrimination in this context; the executive is free to single out “nationals of a particular country” and “focus[]” enforcement efforts on them. Id. This is, of course, an extraordinarily rough and overbroad sort of distinction of which, if applied to citizens, our courts would be highly suspicious. Yet the Supreme Court has repeatedly held that the political branches, “[i]n the exercise of [their] broad power over naturalization and immigration … regularly make[] rules that would be unacceptable if applied to citizens.” Mathews v. Diaz, 426 U.S. 67, 79-80 (1976); compare, e.g,, Fiallo v. Bell, 430 U.S. 787 (1977) (upholding law denying illegitimate child fathered by American citizen the immigration privilege afforded to a legitimate child), with Moore v. City of East Cleveland, 431 U.S. 494 (1977) (striking down housing ordinance limiting occupancy of a dwelling to a single family and defining a single family to preclude grandmother from having grandson live with her). Indeed, “any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.” Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952). “Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.” Id. at 589.

  3. Jason Solomon says:

    Jay’s absolutely right, and this post is fairly outrageous. (Disclosure: I clerked for Judge Gleeson five years ago, but didn’t work on this case, and haven’t talked to him about it since.)

    If you want to argue with his equal protection analysis, go ahead. But the Japanese internment analogy fails. All the plaintiffs here are illegal aliens, and the detention is based on their undisputed illegal conduct. Were the people of Japanese ancestry detained for immigration violations? And if this is such a clear historical precedent, why didn’t the plaintiffs mention it in their brief?

    Unless you have an answer for this, I assume you’ll retract or tone down the post. It’s a careless and “dismissive” slur towards a thoughtful opinion and a judge who’s written a lot of pro-immigrant opinions over the years, including in this very set of cases.

    I know you’ve done a lot of terrific work on the Japanese internments, but the shoe just doesn’t fit here.

  4. Eric Muller says:

    Jason, how do you account for the aliens-vs-citzens language of the passage I just quoted in the prior comment? Judge Gleeson says that a national-origin distinction in law enforcement would be “unacceptable if applied to citizens,” but is acceptable as applied to aliens. He draws no distinction here between legal and illegal aliens.

    This is no “slur” on Judge Gleeson, incidentally. It is absolutely a criticism of his opinion. But there’s not a personal word about the judge himself in my post.

    In my view, it is Judge Gleeson who should retract or tone down that portion of his opinion–admittedly dictum–in which he suggests an essentially unreviewable power to detain non-citizens indefinitely. (And that is the distinction he emphasizes — the distinction between “citizens” and “aliens” — in his disquisition on government power and judicial review. Not a distinction between legal and illegal aliens.

    This is irresponsible language in an opinion on a matter of such importance. Judge Gleeson would have been well advised to write narrowly here, rather than writing in a way so broad that it endorses the wartime internment of Japanese aliens.

  5. Jason Solomon says:

    Eric, the passage you cite looks like a lot of quotes from Supreme Court opinions. Is any of it no longer good law?

    I’m glad you appear to be backing away from your core claim that the ruling is the equivalent of saying the internment of Japanese-Americans was OK, and I assume you’ll change the title and that line of criticism in a revised post.

    Now that you appear to have narrowed your criticism to dictum on p. 78 of a 99-page District Court opinion with a precedential value of zero, I’m going to bed.

  6. And what of the doctrine, as in US. v. Verdugo-Urquidez, stating that “the people” constitutes a class of individuals broader than that merely of the citizens of the US?

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  8. john toilet says:

    this is gay. its boring and stupid i couldnt get thru the whole stupid thing this sucks

  9. john toilet says:

    this is gay. its boring and stupid i couldnt get thru the whole stupid thing this sucks

  10. john toilet says:

    this is gay. its boring and stupid i couldnt get thru the whole stupid thing this sucks