Travel ban Rally in front of the Supreme Court as Trump vs. Hawaii fights inside on 4/25/18
This is the third post in an eight-month blog series aimed at spotlighting state attorneys general and their work. Upcoming blogs will feature writings from former and current state attorneys general and their staff.
At the height of the controversy over President Trump’s Muslim ban, when lower courts ruled Hawaii against Trump have always ruled that the ban was either patently unconstitutional, illegal, or both, this comment appeared on the Hawaii Attorney General’s Facebook page:
“Go back to your corner, Hawaii.”
I was Hawaii’s attorney general at the time. My collaborators offered the following answer:
“Nobody puts Hawaii in a corner.”
It was tempting. I said no, partly because I wasn’t sure millennials would know dirty dance reference, but also because it was our official government account and I wanted to maintain some decorum. Our otherwise crisp and perfect return to an anonymous troll has remained an inside joke until today.
I knew very well what it meant to stick around. Although I was born in Seattle with all the rights and privileges of an American citizen, I was still the son of Chinese immigrants who learned English as a second language, left their homes and families, and came to America in the hope that their future children (my sister and I) might have a better life. Knowing about all this parental sacrifice ingrained in me early on the responsibility to be a “model minority” – work hard, excel, and don’t draw attention to yourself. “The nail pointing up is knocked down” was a constant and even comforting mantra. I simplified my verbal responses in class so as not to sound too clever. I was careful not to offend others with political statements, and because of how I was raised, even looked down on those who did. In college, I never marched or participated in a political event. Same for law school.
Historically, Asian Americans have faced severe forms of prejudice. In the late 19th century, the Chinese Exclusion Act prohibited Chinese immigrants from entering the country. During World War II, on February 19, 1942, Executive Order 9066 was put into effect by the US government. Its stated purpose was to provide “every possible protection against espionage and sabotage to national defense materiel, national defense premises and national defense utilities”. The result of Executive Order 9066 was the imprisonment of over 100,000 Japanese Americans, many of whom were citizens. Yet no instance of espionage or sabotage by a Japanese-American was ever recorded during World War II. Although some brave people have expressed outrage at these unjust laws – including Fred Korematsu, whose case against the United States, Korematsu v. United States323 US 214 (1944), led the United States Supreme Court to uphold the constitutionality of Executive Order 9066 – most did not.
State attorneys general can control the federal government
On January 27, 2017, I watched from my geographically remote corner of the country as President Trump’s initial Muslim ban took effect. Trump stood by his campaign statements that ‘Islam hates us’, that people who practiced the Muslim religion were terrorists and that he would order a ‘total and complete shutdown’ of Muslims entering the country when he took office. As a result, in-flight air passengers were told that they would not be permitted to enter the United States upon arrival. Green card holders from banned Muslim-majority countries have heard the same thing. Refugees who had waited years to escape horrific circumstances in their own country were immediately barred from entering the country, a ban that has remained largely unchanged to this day. On the weekend the ban went into effect, protesters marched through airports across the country, including 5,000 miles from Washington, D.C., at the typically uncontroversial and touristy Honolulu Airport, where hundreds of people, including many of Asian American and Pacific Islander (AAPI) descent, gathered to speak out.
My immediate reaction was that this was a dangerous step down a steep and slippery slope to internment camps based on blatant and unconstitutional discrimination or worse. Several of my colleagues in the state attorney general at the time had similar concerns or had other serious doubts about the president’s action. Within days, lawsuits by states, including Hawaii, against the Muslim ban were filed in federal courts.
In our federal system, the states have the unique ability and responsibility to control the federal government. States, through their attorneys general, can successfully claim standing and assert themselves in controversies in ways that private individuals or organizations cannot. Under the fatherland parenthesis doctrine, a state attorney general can assert claims on behalf of state residents and act as the legal protector of those who are unable to protect themselves. A state can also sue the federal government when the sovereign interests of the state, including the interests of its public agencies and institutions, are threatened. In Hawaii against Trump, courts at all levels have either expressly accepted or failed to reject Hawaii’s assertion that the travel ban, imposed on students and faculty at public universities in Muslim-majority countries, would diminish the college experience and would harm the state. Successful assertion of standing on behalf of a state opens the door to the federal courthouse and the ability for a federal judge to make an order with nationwide effect. In this way, individual state attorneys general possess an extraordinary superpower that they can use to challenge and stop the actions of the federal government. Recent history has shown that state attorneys general can exercise this power for good and just causes or for less good purposes. This is why the various races for state attorney general are so important in states that elect their attorney general, and the races for governor are important in states where the governor appoints the attorney general.
The fight against the travel ban for Muslims
From his courtroom in Honolulu, Hawaiian federal judge Derrick K. Watson, an individual of Pacific Islander descent, granted Hawaii’s motion to block the Muslim ban and ordered it to take effect throughout the country. This caused then-US Attorney General Jeff Sessions to publicly complain that there was a “militant AG” (apparently referring to me) in Hawaii and that it was too bad that a judge on a “island in the middle of the Pacific” could unilaterally stop the president’s executive action. (In response to Sessions, my office tweeted a photo of the Hawaii state constitution, a social media post that I did To allow). In his ruling that the Muslim ban violated the Establishment Clause of the First Amendment to the U.S. Constitution, Justice Watson wrote this statement that I found particularly poignant: “The Court won’t crawl into a cornerlower the shutters and pretend he hasn’t seen what he has.
In a 5-4 decision, 585 US __ (2018) – after the US government released what Trump described as a “watered down version” of his original Muslim ban, then released a third iteration that watered down, at least on paper the focus on Muslim-majority nations – the Supreme Court in 2018 overturned lower court rulings and upheld the ban. The majority opinion expressly referred to the 1944 convention Korematsu decision as “grossly erroneous” and overturned it, although in her dissent, Judge Sotomayer wrote that the Asset decision “redeploys the same dangerous logic that underlies Korematsu and simply replaces one “seriously erroneous” decision with another. »
I’ve been asked on occasion if it’s hard to go from being a self-proclaimed member of the “model minority”, which throughout my life had watched most of the “corner” controversies, to becoming the prosecutor general of Hawaii who prosecuted the president. of the United States and took it all the way to the Supreme Court of the United States. Frankly, the decision to sue the president took less time than deciding what to say in response to the social media posts that followed. For me, the Muslim ban represented dark, frightening and irrational hatred. It was brazenly unconstitutional and illegal. It was a step back from progressive ideals. It was not a path or a direction that I wanted my country to take. It ran counter to the values of diversity, acceptance and inclusion that make Hawaii and the rest of America so special. As State Attorney General, taking legal action to uphold and uphold the US Constitution and its laws was required by the oath I took when I took office. As an Asian American, it was an opportunity to be at the forefront of the ongoing struggle to confront prejudice in America.
Doug Chin is a director at Starn, O’Toole, Marcus & Fisher. He served as Hawaii’s Attorney General from 2015 to 2018 and was the first Hawaii Attorney General to chair the Western Conference of Attorneys General and the first to serve on the Executive Committee of the National Association of Attorneys General. He sits on the board of the Leadership Center for Attorney General Studies.
Equality and liberty, immigration, racial equality, roles of state attorneys general, state attorneys general