Asian Americans Advancing Justice – AAJC and the Fred T. Korematsu Center File Amicus Brief Urging Supreme Court to Consider Potential Discrimination in Hearings for TikTok Ban
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WASHINGTON, D.C. – On December 27, Asian Americans Advancing Justice | AAJC (Advancing Justice – AAJC) and the Fred T. Korematsu Center for Law and Equality filed an amicus brief ahead of today’s United States Supreme Court hearings in the cases of TikTok, Inc. v. Garland and Firebaugh v. Garland challenging the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA). The brief supported neither party and outlined the concerns that the case presented to the Asian American community.
The brief, filed with counsel from Benedict Law Group, PLLC, urged the Court to apply the highest standard of judicial review when assessing the constitutionality of the law, on the grounds that PAFACA favors some points of view over others. The brief also notes that the anti-Asian sentiment of lawmakers speaking in support of the law bears some similarity to other points in the history of anti-Asian discrimination in the United States, underscoring the need for close scrutiny. And the brief asks the Supreme Court not to defer excessively to the purported national security concerns the government has invoked to justify PAFACA. When the Court has previously failed to exercise independent judgment in the face of national security concerns, the rights of Americans—and Asian Americans specifically—have suffered, most notably when the Court enabled the federal government’s incarceration over 110,000 Japanese Americans during World War II.
“The government can and should act to defend the national security interests of the United States, but it is the responsibility of the Supreme Court to ensure that those actions comport with the requirements of our Constitution,” said Noah Baron, Assistant Director of Litigation at Advancing Justice – AAJC. “Korematsu shows us what can happen when the Court fails to exercise that solemn responsibility. Though this case is not as dire, the same principle is at issue.”
“History has shown that when laws target groups on the basis of national origin and race, and are not properly vetted, they perpetuate and give validity to stereotypes and prejudice,” said Robert Chang, Executive Director of the Korematsu Center. “The deference to the mere invocation of national security concerns can have devastating consequences – such as in the cases of the incarceration of Japanese Americans during World War II and the 1882 Chinese Exclusion Act.”
Since the signing of PAFACA into law by President Biden in April, Advancing Justice – AAJC has called for lawmakers to consider the risks of leaning into xenophobia and racism to limit First Amendment rights, and challenged the use of national security concerns to enact discriminatory laws. Both Advancing Justice – AAJC and the Korematsu stand firm in their work to fight for fair and comprehensive legislation to protect all Americans.