In Politico, Richard Primus writes that the imminent petition for certiorari in IRAP v. Trump affords the Court–really Justice Kennedy–an opportunity to overturn Korematsu. A few weeks ago, I explained why Judge Paez’s questions about Korematsu were non sequiturs–the civilian exclusion order at issue in that case was not facially neutral, but made explicit references to people of Japanese ancestry.

Primus makes a different points:

In both cases, the executive branch acts on the theory that members of a marginal demographic group are dangerous but officially insists that its actions are warranted by legitimate policy imperatives rather than flowing from prejudice. In both cases, the executive branch claims that the judiciary must not second-guess the executive because the case concerns dangerous subject matter where the executive’s expertise vastly exceeds that of any court and in which a mistake could be catastrophic: wartime national defense in Korematsu, immigration control as a form of defense against terrorism today.

If these two propositions amount to overruling Korematsu, then the deed has already been done, if not in name. First, there are many cases that infringed on the rights on “marginal demographic group”on the prejudiced belief that they are “dangerous.” Look no further than the Court’s free speech and association jurisprudence, which afforded protection for purportedly “dangerous” communists and marxists. More generally, racial classifications under the 5th or 14th Amendment are subjected to the strictest of scrutiny. Second, in the years following 9/11, the Supreme Court (and Justice Kennedy) voiced increasing skepticism towards the Bush administration’s invocation of national security as a defense its policies at Guantanamo Bay. Remember Justice Scalia’s vituperative dissent in Boumedienne, where he charged that the majority opinion “will almost certainly cause more Americans to be killed.” If there was ever an opportunity for Justice Kennedy to flat-out overrule Korematsu, that was the case (it was not cited in the decision).

Theses lines of cases are relevant, because they involve applications of domestic constitutional law. For purposes of the First, Fifth, and Fourteenth Amendments, courts routinely apply rigorous review. In contrast, the travel ban concerns aliens outside of our borders who have no connection to the United States. (The executive order’s waivers, which are available for relatives of U.S., have largely been forgotten in this litigation, especially with respect to ripeness concerns). Under Mandel, courts only perform a review of facial legitimacy.

Primus does raise a very important distinction that was also missing in Judge Paez’s questions.

And although the Japanese internment and the Trump administration’s travel ban are different in several important ways—discriminatorily refusing entry to aliens is not morally equivalent to discriminatorily imprisoning America’s own citizens—the constitutional issues surrounding the travel ban easily evoke central issues of Korematsu.

There are similarities and difference between discriminating against people within the United States and aliens without. Both are morally wrong, but only the former raises traditional forms of constitutional scrutiny. For this reason, the Korematsu comparisons are not apt.