After the War on Terror began, the Bush administration asserted that it had executive authority to detain American citizens, which came to pass in the case of José Padilla. When Padilla’s case was heard by the Supreme Court, the court evaded addressing the question of whether or not the president had authority to detain American citizens. A subsequent court case in the Fourth Circuit saw that court issue a highly unusual order that stated that its earlier ruling that the president has the ability to order the detention of American citizens still stands.
So, there remains a precedent on the books for the mass arbitrary detention of American citizens, which is now also supported by Congress’ passage of the 2012 National Defense Authorization Act, which authorizes the government to indefinitely detain American citizens. Court challenges to the 2012 NDAA subsequently led to appellate court rulings which stated that, unless one could prove that they are on one of these lists and are therefore potential targets for military detention, one has no standing to challenge the constitutionality of such measures, which means the courts will evade their responsibility to address its constitutionality.
Sotomayor is right to be alarmed because the infrastructure of the mass detention that occurred during World War II has never been dismantled. Instead, it has arguably been expanded. Furthermore, the majority opinion in this [Trump v. Hawaii] case says only that the president cannot imprison U.S. citizens or foreign nationals living the United States “explicitly and solely” on the basis of race. Furthermore, the Supreme Court has now stated that it will be looking only at the official basis supplied by the text of the executive order, not the overwhelming evidence pointing to the president’s real intention of targeting Muslim-Americans.
Sotomayor’s dissent also warns us — implicitly — that Roberts’ decision to adopt this type of standard essentially tells the president how he can draft a future executive order that would allow him or a future president to create mass detention camps of American citizens deemed national security threats, whether or not they just by happenstance are 99 percent Arab, without concern of a legal challenge from the U.S. Supreme Court.
This is because the Court has essentially stated that it would refuse to look at evidence in future cases that an executive order is unconstitutional as long as the text of that order does not explicitly single out a group of Americans based on their ethnicity or religion, even if there are facts that demonstrate that it is clearly aimed at members of those groups.