Two weeks ago, the Supreme Court heard oral arguments surrounding President Trump’s travel ban. The arguments centered around whether the president had authority to issue such a ban, whether the ban targeted Muslims, and how long the ban would last. Public responses have fallen largely into two camps: that the ban is a continuation of presidential campaign prejudice against Muslims, or that the ban protects national security based on confidential information.
A telling article in the Salt Lake Tribune last week gave some historical context for the Supreme Court situation. During World War II, President Franklin Delano Roosevelt signed Executive Order 9066 which authorized the removal of Japanese-Americans to internment camps because of a potential threat to national security. Fred Korematsu refused to be removed, was arrested, and argued that the order was unconstitutional. The Supreme Court ruled that the executive order was constitutional and that national security took precedence over protection against racial prejudice. This court case was not the only source of presidential authority over national security in relation to race and migration, but it was a symbolically important one.
“Forty years later,” Salt Lake Tribune columnist Robert Gehrke writes, “an attorney named Dale Minami persuaded a court to vacate the conviction [against Korematsu] based on new evidence that the government had lied about the ground for the interment order.” In 1983, Korematsu won an appeal against the original Supreme Court decision, and in 1988 the federal government issued $20,000 in reparations to each surviving interned Japanese-American.
So, what does this court case mean for today’s travel ban? And why are you reading it on a Mormon History blog?
Let me deal with the former, first. The emphasis on national security, which has taken extreme importance for the past half-century during our “wars” against communism and terrorism, is one that can and should be questioned by authorized officials. The impetus for Executive Order 9066 was most directly based on falsified information that the federal government assured the Supreme Court was valid in Korematsu v. United States. What measures exist to prevent such a mistake from happening again? Just the court briefs by each side, amici briefs from outsiders, and the authority of the Supreme Court.
This is not just an issue about national security, but also one about immigration law. Since the federal government fully assumed control of immigration to the United States in 1891, its history of migration policy has been largely restrictive. For over forty years, from 1921 to 1965, U.S. immigration law explicitly restricted entry based on national origins in a system that gave preference to Western (read white) Europeans. For most of that time period the system banned Asians. In the middle of this forty-four year span, the federal government contracted roughly 400,000 Mexican laborers per year to work in the American Southwest, particularly through the Bracero Program. Maybe it’s coincidence that the Bracero Program began the same year as Executive Order 9066. After having created networks of labor and movement across the U.S.-Mexican border for over twenty years, the Bracero Program ended in 1964. The 1965 immigration law placed a 20,000 visa cap for each country. The decades-old labor networks and social networks persisted even though law changed (which resulted in hundreds of thousands of Mexican laborers suddenly becoming “illegal”). In the public mind the “Latino Threat Narrative” became a newly charged danger to national security. To say that American immigration law in the twentieth century had a race problem is to vastly underestimate this history. Immigrant threats to national security have not escaped this problem of race in the past. It seems logical, then, that we should be aware of the problem of race for our current immigrant-threat-to-national-security-problem.
Just a quick note: this isn’t the first time that a president has invoked the restriction of migration based on national security in our modern era. It is, however, the first time that a president has used national origin as the logic for restriction since 1965. In particular, the Trump travel ban goes against the 1965 Immigration Act by limiting migration from specific countries. Critique from the Left, then, has warned against a return to the racist system of restriction based on national origins and has argued that this history cannot be ignored, and that it has been up to the American public to identify, critique, and fight for racial equality and migrant rights.
Now let’s deal with the latter question: why is this on a Mormon History blog? While the language of race has been fairly explicit in immigration law, the language of religion has not. The separation of Church and State implies a highly sensitive awareness for overt and conspicuous religious discrimination. Nativist groups have expressed their opposition toward Catholic and Jewish migrants. But, in the early twentieth century, law targeted those particular threats through perceived moral and racial degradation, instead of using explicitly religious identification. This seems to be true for other religious migrant groups, as well. In particular, the federal government targeted Mormons through the language of polygamy in the 1879 Evarts Circular and 1891 Immigration Act. This legislation danced around the separation of Church and State by cloaking its rhetoric in secular language and by specifying the intersections of multiple identities: Mormons=polygamists. The strength of the laws, then, depended on the strength of stereotypes: when Catholics, Jews, and Mormons could pass as monogamous and moral (white) citizens in the first half of the twentieth century, then they could avoid these particular moments of animus against religious migrants. The point here, though, is that, in terms of immigration, religious prejudice hasn’t existed in explicitly religious language. In the current context, this forces us to ask: does the current travel ban target Muslims even if it doesn’t use explicitly anti-Muslim language? Does simply saying that the travel ban isn’t religious make it not religiously motivated? We should be aware of the covert and inconspicuous nature of religious prejudice.
Scholars of Mormonism have already made this point, particularly in relation to the supposed Muslim nature of Trump’s travel ban. The question that now rests with the Supreme Court is whether this history of identifying religious and racial prejudice can justify an inspection of confidential information for the claim that the travel ban is in the name of national security, rather than in the name of religious prejudice. This question is one that the Mormon past is now formally and informally a part of.
 Douglas S. Massey and Karen A. Pren, “Unintended Consequences of US Immigration Policy: Explaining the Post-1965 Surge from Latin America,” Population and Development Review 38, no. 1 (2012): 1-29.