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Controversial decision could gain new life in the name of security
DANIEL A. COTTER
Law Bulletin columnist
Published: December 9, 2016
In a prior column, I wrote about the novel, “Allegiance,” in which author Kermit “Kim” Roosevelt III explored through fiction the three famous cases challenging the internment of Japanese Americans — Hirabayashi v. U.S., Korematsu v. U.S. and Ex Parte Endo.
The Korematsu decision, written by Justice Hugo L. Black, found the exclusion orders and need to protect against espionage outweighed the individual rights of Fred Korematsu. Korematsu has never been formally overturned, despite the government submitting false evidence.
Recently, the question of whether Korematsu remains good law and can provide the legal basis to establish a registry or other classification system for Muslims in the United States, has been raised as a possibility by President-elect Donald Trump’s administration. This column takes a closer look at the Korematsu decision and its current status.
Japanese-American internment
After Japan attacked Pearl Harbor, there was widespread fear that Japan would invade and attack the West Coast. At that time, the United States had little military presence in the Pacific. Based on these fears, on Feb. 19, 1942, President Franklin Delano Roosevelt signed Executive Order 9066 which authorized the relocation and internment of those of Japanese descent residing on the West Coast.
In March 1942, Lt. General J.L. DeWitt, commanding general of the Western Defense Command, declared the entire West Coast to be a military zone and curtailed travel and imposed a curfew on German, Italian and Japanese nationals. In addition, DeWitt imposed curfews and travel restrictions on American citizens of Japanese descent.
In May 1942, DeWitt took an additional step by issuing Civilian Exclusion Order No. 34 (authorized by Executive Order 9066), directing all persons of Japanese ancestry residing in the West Coast military zone to be relocated and interned regardless of individual loyalty to the U.S. DeWitt later testified to a congressional committee:
“A Jap’s a Jap. … It makes no difference whether he’s an American citizen or not. There is no way to determine their loyalty.”
Pursuant to Order No. 34, more than 120,000 ethnic Japanese, of which 70,000 were American citizens, were relocated and interned. Most of them lost their homes and properties as a result.
Korematsu and the Supreme Court decision
Korematsu was an American-born citizen living in California whose parents immigrated from Japan. Korematsu had plastic surgery on his eyelids in an attempt to hide his racial identity, in part because he did not want to leave his Italian girlfriend.
Korematsu was arrested and convicted after he failed to report to the assembly center as directed, and the 9th U.S. Circuit Court of Appeals affirmed his conviction. Korematsu appealed to the Supreme Court. The court held conference on his case on Oct. 16, 1944, with the justices initially voting 5-4 in conference to uphold the conviction. The Supreme Court decision subsequently affirmed the 9th Circuit’s decision by a vote of 6-3, with the majority opinion written by Black.
Black based his decision in part on the Supreme Court’s 1943 decision, Hirabayashi v. United States, which deferred to Congress and military authorities with respect to Japanese relocation and internment in light of the exigencies of war and the aftermath of Pearl Harbor.
Black stated that the decision in Korematsu had nothing to do with racial prejudice, but was a decision by the military given the circumstances:
“Korematsu [was excluded] because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures.”
Justice Felix Frankfurter concurred, noting that the “validity of action under the war power must be judged wholly in the context of war” and concluded:
“I find nothing in the Constitution which denies to Congress the power to enforce such a valid military order.”
Justices Frank Murphy, Owen J. Roberts and Robert H. Jackson issued separate dissents. Murphy dissented “from this legalization of racism,” arguing that all residents of the United States were “entitled to all the rights and freedoms guaranteed by the Constitution.” Murphy was the first Supreme Court justice to use the term “racism” in a Supreme Court opinion; he first used it in his concurrence in Ex parte Endo (1944).
Roberts dissented on grounds that the conviction was based solely on Korematsu’s ancestry without inquiry “concerning his loyalty and good disposition towards the United States.” While Jackson conceded that the courts were powerless to appropriately review military decisions, he nonetheless dissented on the ground that the court’s ratification of an unconstitutional act was not appropriate:
But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens.
The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply into our law and thinking and expands it to new purposes.
The Korematsu decision has never been formally overruled. In 1983, after filing suit in U.S. District Court in California, Korematsu was issued an apology, had his own conviction overturned in 1983 and received reparations from the United States government.
More than 30 years later, on Jan. 13, 2014, lawyers who represented Korematsu, Gordon Hirabayashi, and Minoru Yasui in the court cases seeking nullification of their convictions (including the 1983 action) sent then-Solicitor General Donald Verrilli Jr. a letter asking the Supreme Court to expressly overrule the Korematsu, Hirabayashi and Yasui decisions. (While Korematsu had his conviction overturned, the U.S. District Court had no power or authority to directly affect the Supreme Court decision.)
The letter was sent in connection with the United States Supreme Court case, Hedges v. Obama, and requested that if not directly overruled, the federal government should clearly state that the government “does not consider the internment decisions as valid precedent for governmental or military detention of individuals or groups without due process of law. … ”
Hedges was a lawsuit challenging the National Defense Authorization Act for Fiscal Year 2012, which permitted the U.S. government to indefinitely detain those “who are part of or substantially support al-Qaida, the Taliban or associated forces engaged in hostilities against the United States.” The Supreme Court declined to hear the case, and so did not address the letter’s requests.
Continuing impact
Some have pointed to the Korematsu decision for the proposition that the Trump administration could create a special registration or establish relocation camps for Muslims residing in the United States.
The first hurdle to applying Korematsu now, however, is that court in part relied upon the president’s wartime powers in reaching its decision. On Feb. 3, 2014, in a speech, justice Antonin G. Scalia stated:
“[T]he Supreme Court’s Korematsu decision upholding the internment of Japanese-Americans was wrong, but it could happen again in wartime.”
In October 2015, Scalia told other law students that Jackson’s dissent in Korematsu was the historical opinion he admired most because Jackson understood the action as wrong and strongly expressed his views.
Unlike the time when the Korematsu opinion was issued, the United States is not in a declared state of war and thus the Trump administration seemingly could not rely on presidential wartime powers to justify these actions (although perhaps an argument of “war on terror” could be made).
A second potential hurdle is the extreme criticism of the Korematsu decision, both at the time it was issued and continuing to this day, as being one of the worst decisions the Supreme Court has ever issued. Further complicating any precedential value of the Korematsu decision is the companion decision issued the same day, Ex parte Endo.
In that case, the court unanimously ordered Endo’s unconditional release because, unlike Korematsu, she had reported to her assembly center and was an admitted loyal American citizen who had broken no laws. Theoretically, any Muslim who admitted loyalty as an American citizen could rely on the ruling in Endo and retain their rights and liberties.
Further, since Korematsu, Congress passed the Non-Detention Act of 1971 (requiring specific congressional action for detention) and the Civil Liberties Act of 1988 (granting reparations to those Japanese interned), effectively repudiating the decision.
Finally, some insights on the future applicability of the Korematsu opinion might be provided during the current Supreme Court term, when the Supreme Court rules on a case it heard on Nov. 30 of this year, Jennings v. Rodriguez, which addresses the question of whether immigrants can be imprisoned for months or years without the due process of a hearing to determine whether the detainees’ imprisonment is justified.
Nonetheless, the Korematsu decision has never been formally overruled and thus theoretically could be invoked as Scalia suggested.
Conclusion
Korematsu was decided during the exigencies of World War II and in the immediate aftermath of the attack on Pearl Harbor by Japan. While no threat to the United States was found to have existed by those of Japanese descent who were interned, the Supreme Court deferred to the president and to Congress given the need for wartime security.
Korematsu has never been formally overruled, but one would expect aggressive challenges if future administrations were to defend actions based on Korematsu, even then under the narrowest security bases.
Daniel A. Cotter is a partner at Butler Rubin Saltarelli & Boyd LLP and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. The article contains his opinions and is not to be attributed to anyone else. He can be reached at dcotter@butlerrubin.com.