Should the Federal Gov’t Be Prohibited from Detaining People Based on Protected Characteristics? (H.R. 1288)

What is H.R. 1288?

(Updated August 25, 2021)

This bill — the Korematsu-Takai Civil Liberties Protection Act of 2019 — would amend the federal criminal code to modify the federal government’s detention authority. Specifically, it would add a provision prohibiting the detention or imprisonment of an individual based solely on an actual or perceived protected characteristic. A “protected characteristic” would include race, ethnicity, national origin, religion, gender, gender identity, and sexual orientation.

Argument in favor

The current political climate, in which the Trump administration has detained unauthorized immigrants and persecuted specific religious and ethnic groups as threats to the U.S., risks a repeat of the circumstances that led to Japanese-Americans’ internment during WWII. This legislation is needed to ensure that history doesn’t repeat itself.

Argument opposed

The Supreme Court has already overruled its prior ruling upholding the federal government’s authority to detain citizens based on identity. Similarly, legislation overturning the legal framework for detaining citizens and legal residents based on their identities has been overturned. With this in mind, there’s no need for this legislation.

Impact

U.S. citizens; U.S. residents; and U.S. detention authority.

Cost of H.R. 1288

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Rep. Mark Takano (D-CA) reintroduced this bill from the 115th Congress to establish a clear legal prohibition against policies seeking to imprison American citizens on the basis of race, religion, nationality, sex, gender identity, sexual orientation, ethnicity, or disability, as happened to Japanese Americans during World War II:

“We cannot allow what my parents, grandparents, and 115,000 other Japanese Americans underwent during World War II to ever happen again in our country. The cruelty and inhumanity behind the internment of Japanese Americans is a stain on the fabric of our country that was born out of hate, discrimination, and politics rooted in fearmongering. The rhetoric and policies being promoted by this Administration are a cause for concern and further emphasize the need for this legislation. In honor of Congressman Takai and Fred Korematsu, we must ensure that no person is ever a target of despicable policies that are discriminatory and un-American.”

Sen. Tammy Duckworth (D-IL), who has sponsored Senate companions to this bill in both the 115th and 116th Congresses, adds:

“We, as a nation, must never forget or repeat the horrors thousands of Japanese Americans experienced as prisoners within our own borders. We must also continue to do everything we can to ensure such a national travesty never happens again. I’m proud to introduce this bill with Senator Hirono and Congressman Takano, in honor of the courage of Fred Korematsu and in remembrance of my dear friend and former colleague Mark Takai, to protect civil liberties and strengthen our resolve to ensure we never again repeat such shameful acts.”

Fred Korematsu’s daughter Karen Korematsu, who is the founder and executive director of the Fred T. Korematsu Institute, supports this bill. She says:

“This year marks my father’s 100th birthday and the 75th anniversary of Korematsu v. United States decision. At these milestones, it is a reminder that we must ‘Stand Up For What is Right’ and ‘Stop Repeating History’ by enacting a law that will ensure what happened to my father and 120,000 Americans of Japanese ancestry can never be done to anyone again in the US. It is fitting at this time of national stress that our lawmakers use their powers to correct one of the worst U.S. Supreme Court decisions of all time. I am grateful for the leadership of Senator Duckworth, Senator Hirono and Congressman Takano for introducing a bill that honors both my father and the late Congressman Takai.”

National Asian Pacific American Bar Association (NAPABA) President Daniel Sakaguchi adds:

“The Korematsu-Takai Civil Liberties Protection Act acknowledges a dark chapter of our history when our government used national security as a pretext for racial discrimination, and incarcerated tens of thousands of Japanese Americans unconstitutionally. This bill honors the memories of Fred Korematsu and Congressman Mark Takai by enacting measures to stop this sordid history from being repeated — and would bar detentions based on race, religion, or other protected characteristics.  We thank Senator Duckworth, Senator Hirono, and Congressman Takano for continuing to champion this important legislation and the more than a dozen original cosponsors of the bill for joining this effort to protect the civil rights and civil liberties of all communities.”

The White House has declined to comment on this bill. However, in 2015, then-Republican presidential frontrunner Donald Trump told TIME he didn’t know whether he’d have supported or opposed Japanese Americans’ internment during WWII:

“I would have had to be there at the time to tell you, to give you a proper answer. I certainly hate the concept of it. But I would have had to be there at the time to give you a proper answer. It’s a tough thing. It’s tough. But you know war is tough. And winning is tough. We don’t win anymore. We don’t win wars anymore. We don’t win wars anymore. We’re not a strong country anymore. We’re just so off.”

This bill has four Democratic cosponsors in the current session of Congress. A Senate companion bill, introduced by Sen. Tammy Duckworth (D-IL), has 14 Democratic cosponsors. It also has the support of the Korematsu Institute, Stop Repeating History, the Anti-Defamation League, the Japanese American Citizens League, the National Asian Pacific American Bar Association, NAACP, Human Rights Campaign, National Council of Asian Pacific Americans, Asian Pacific American Institute for Congressional Studies, Asian Americans Advancing Justice | AAJC, and the Japanese American National Museum (JANM).

Last Congress, Rep. Takano introduced this bill with the support of 18 Democratic cosponsors, and it didn’t receive a committee vote. A Senate companion bill in the 115th Congress, introduced by Sen. Tammy Duckworth (D-IL), had the support of 10 Democratic cosponsors and also didn’t receive a committee vote.

Of Note: This bill is named in honor of the late U.S. Congressman Mark Takai (D-HI), who led on this issue for a long time prior to his passing, and Fred Korematsu, who challenged President Franklin D. Roosevelt’s Executive Order 9066 directing all people of Japanese ancestry to be removed from designated areas on the West Coast in the Supreme Court. Ultimately, 120,000 Japanese-Americans were sent to internment camps for the remainder of World War II.

Although Korematsu lost his case against the Supreme Court in 1944, the Court tossed out its prior ruling as “objectively unlawful” in 2018. Writing for the majority, Chief Justice John Roberts wrote that “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — has no place in law under the Constitution.”

The Non-Detention Act of 1971 repudiated the legal framework allowing the government to detain U.S. citizens by deeming them national security risks. However, the Non-Detention Act didn’t specifically bar detentions or imprisonment based on race or religion. This bill would fix this loophole.

In 1988, President Ronald Reagan signed legislation apologizing to the over 100,000 people of Japanese ancestry who were placed in detention camps during WWII. He also authorized reparations for survivors.

Media:

• Sponsoring Rep. Mark Takano (D-CA) Press Release
  
• Senate Sponsor Sen. Tammy Duckworth (D-IL) Press Release
  
• CNN
  
• Broadly