HIRABAYASHI v. UNITED STATES
No. 870
SUPREME COURT OF THE UNITED STATES
320 U.S. 81; 63 S. Ct. 1375; 87 L. Ed. 1774; 1943 U.S. LEXIS 1109
May 10, 11, 1943, Argued
June 21, 1943, Decided
PRIOR HISTORY:
CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
RESPONSE to questions certified by the Circuit Court of Appeals upon an appeal
to that court from a conviction in the District Court upon two counts of an
indictment charging violations of orders promulgated by the military commander
of the Western Defense Command. This Court directed that the entire record be
certified so that the case could be determined as if brought here by appeal.
See 46 F.Supp. 657.
DISPOSITION: Affirmed.
LAWYERS' EDITION HEADNOTES:
[***HN1]
APPEAL, §1315
harmless error -- conviction on several counts. --
Headnote: [1]
Where sentences on each count of indictment run concurrently it is unnecessary
to consider questions raised with respect to other counts if one count must be
sustained.
[***HN2]
CONSTITUTIONAL LAW, §95
ratification by Congress of official action. --
Headnote: [2]
The provision by Congress of criminal sanctions for violations of an executive
order constitutes a ratification thereof.
[***HN3]
WAR, §11
scope of war power. --
Headnote: [3]
The war power of the national government is the power to wage war successfully.
It extends to every matter and activity so related to war as substantially to
affect its conduct and progress, and is not restricted to the winning of
victories in the field and the repulse of enemy forces, but embraces every
phase of the national defense, including the protection of war material and
members of armed forces from injury and from the dangers of sabotage and
espionage which attend the rise, prosecution and progress of war.
[***HN4]
COURTS, §71
wisdom of exercise of discretionary power not reviewable. --
Headnote: [4]
Since the Constitution commits to the executive and to Congress the exercise of
the war power in all the vicissitudes and conditions of warfare, it has
necessarily given them wide scope for the exercise of judgment and discretion
in determining the nature and extent of the threatened injury or danger and in
the selection of means for resisting it; and where the conditions call for the
exercise of judgment and discretion and for the choice of means it is not for
any court to sit in review of the wisdom of the actions taken by these branches
of the Government or substitute its judgment for theirs.
[***HN5]
WAR, §11
curfew order as proper exercise of war power. --
Headnote: [5]
A curfew order issued by the commander of a West Coast military area during war
between the United States and Japan, at a time of possible invasion or air
raids, under an Executive Order authorizing the taking of measures to prevent
espionage and sabotage, requiring all persons of Japanese ancestry resident in
such area to be in their places of residence daily between the hours of 8 P. M.
and 6 A. M. is, within boundaries of the war power.
[***HN6]
CONSTITUTIONAL LAW, §313
discriminatory legislation. --
Headnote: [6]
The Fifth Amendment contains no equal protection clause and restrains only such
discriminatory legislation by Congress as amounts to a denial of due process.
[***HN7]
CONSTITUTIONAL LAW, §321
equal protection -- law aimed at particular evil. --
Headnote: [7]
Congress may hit at a particular danger when it is seen, without providing for
others which are not so evident or so urgent.
[***HN8]
CONSTITUTIONAL LAW, §348 1/2
curfew order directed against citizens of particular race. --
Headnote: [8]
A curfew order issued by the commander of a West Coast military area during war
between the United States and Japan, at a time when there was a possibility of
invasion or air raids, requiring, with a view to preventing sabotage and
espionage, all persons of Japanese ancestry residing in such area to be in
their places of residence between the hours of 8 P. M. and 6 A. M., does not
unconstitutionally discriminate between citizens of Japanese ancestry and those
of other ancestries, in violation of the Fifth Amendment, where the
circumstances are such as to make racial distinctions relevant.
[***HN9]
CONSTITUTIONAL LAW, §53
delegation of legislative power -- authorizing military commander to make
curfew order. --
Headnote: [9]
No constitutional delegation of legislative power by Congress is involved in
conferring discretionary power upon the commander of a military area in time of
war to make a curfew order as a safeguard against espionage and sabotage.
[***HN10]
CONSTITUTIONAL LAW, §53
delegation of power -- conformity of administrative action to legislative
standards. --
Headnote: [10]
Where the standards set up for the guidance of an administrative officer and
the action taken and reasons for it are in fact recorded in the orders of such
officer, so that Congress, the courts and the public are assured that the
orders, in the judgment of such officer, conform to the legislative standard,
there is no failure in the performance of the legislative function.
[***HN11]
CONSTITUTIONAL LAW, §50
delegation of legislative power -- administrative determination as to when
statutory command shall become operative. --
Headnote: [11]
The essentials of the legislative function are preserved when Congress
authorizes a statutory command to become operative upon ascertainment of a
basic conclusion of fact by a designated representative of the Government.
SYLLABUS: 1. Where a defendant is convicted on two counts of an indictment
and the sentences are ordered to run concurrently, it is unnecessary on review
to consider the validity of the sentence on both of the counts if the sentence
on one of them is sustainable. P. 85.
2. Pursuant to Executive Order No. 9066, promulgated by the President on
February 19, 1942 while the United States was at war with Japan, the military
commander of the Western Defense Command promulgated an order requiring, inter
alia, that all persons of Japanese ancestry within a designated military
area "be within their place of residence between the hours of 8 p. m. and
6 a. m." Appellant, a United States citizen of Japanese ancestry, was
convicted in the federal District Court for violation of this curfew order.
Held:
(1) By the Act of March 21, 1942, Congress ratified and confirmed Executive
Order No. 9066, and thereby authorized and implemented such curfew orders as
the military commander should promulgate pursuant to that Executive Order. P.
91.
(2) It was within the constitutional authority of Congress and the Executive,
acting together, to prescribe this curfew order as an emergency war measure. P.
92.
In the light of all the facts and circumstances, there was substantial basis
for the conclusion, in which Congress and the military commander united, that
the curfew as applied was a protective measure necessary to meet the threat of
sabotage and espionage which would substantially affect the war effort and
which might reasonably be expected to aid a threatened enemy invasion. P. 95.
(3) The curfew order did not unconstitutionally discriminate against citizens
of Japanese ancestry. P. 101.
(a) The Fifth Amendment contains no equal protection clause and it restrains
only such discriminatory legislation by Congress as amounts to a denial of due
process. P. 100.
(b) The curfew order as applied, and at the time it was applied, was within the
boundaries of the war power. P. 102.
(c) The adoption by the Government, in the crisis of war and of threatened
invasion, of measures for the public safety, based upon the recognition of
facts and circumstances which indicate that a group of one national extraction
may menace that safety more than others, is not to be condemned as
unconstitutional merely because in other and in most circumstances racial
distinctions are irrelevant. P. 101.
(d) An appropriate exercise of the war power is not rendered invalid by the
fact that it restricts the liberty of citizens. P. 99.
(4) The promulgation of the curfew order by the military commander was based on
no unconstitutional delegation of legislative power. P. 102.
The essentials of the legislative function are preserved when Congress provides
that a statutory command shall become operative upon ascertainment of a basic
conclusion of fact by a designated representative of the Government. The Act of
March 21, 1942, which authorized that curfew orders be made pursuant to
Executive Order No. 9066 for the protection of war resources from espionage and
sabotage, satisfies those requirements. P. 104.
COUNSEL: Messrs. Frank L. Walters and Harold Evans, with whom Messrs.
Osmond K. Fraenkel, Arthur G. Barnett, Edwin M. Borchard, Brien McMahon, and
William Draper Lewis were on the brief (Mr. Alfred J. Schweppe entered an
appearance), for Hirabayashi.
Solicitor General Fahy, with whom Messrs. Edward J. Ennis, Arnold Raum, John L.
Burling, and Leo Gitlin were on the brief, for the United States.
Briefs of amici curiae were filed by Messrs. Arthur Garfield Hays, Osmond K.
Fraenkel, and A. L. Wirin on behalf of the American Civil Liberties Union; by
Mr. A. L. Wirin on behalf of the Japanese American Citizens League; and by Mr.
Jackson H. Ralston on behalf of the Northern California Branch of the American
Civil Liberties Union, -- in support of Hirabayashi; and by Messrs. Robert W.
Kenny, Attorney General of California, I. H. Van Winkle, Attorney General of
Oregon, Smith Troy, Attorney General of the State of Washington, and Fred E.
Lewis, Chief Assistant and Acting Attorney General of the State of Washington,
on behalf of those States, -- urging affirmance.
JUDGES: Stone, Roberts, Black, Reed, Frankfurter, Douglas, Murphy,
Jackson, Rutledge
OPINIONBY: STONE
OPINION: [*83] [**1377] [***1777]
MR. CHIEF JUSTICE STONE delivered the opinion of the Court.
Appellant, an American citizen of Japanese ancestry, was convicted in the
district court of violating the Act of Congress of March 21, 1942, 56 Stat.
173, which makes it a misdemeanor knowingly to disregard restrictions made
applicable by a military commander [**1378] to persons in a
military area prescribed by him as such, all as authorized by an Executive
Order of the President.
The questions for our decision are whether the particular restriction violated,
namely that all persons of Japanese ancestry residing in such an area be within
their place of residence daily between the hours of 8:00 p. m. and 6:00 a. m.,
was adopted by the military commander in the exercise of an unconstitutional
delegation by Congress of its legislative power, and whether the restriction
unconstitutionally discriminated between citizens of Japanese ancestry and
those of other ancestries in violation of the Fifth Amendment.
The indictment is in two counts. The second charges that appellant, being a
person of Japanese ancestry, had on a specified date, contrary to a restriction
promulgated by the military commander of the Western Defense Command, Fourth
Army, failed to remain in his place of residence [*84] in the
designated military area between the hours of 8:00 o'clock p. m. and 6:00 a. m.
The first count charges that appellant, on May 11 and 12, 1942, had, contrary
to a Civilian Exclusion Order issued by the military commander, failed to
report to the Civil Control Station within the designated area, it appearing
that appellant's required presence there was a preliminary step to the
exclusion from that area of persons of Japanese ancestry.
By demurrer and plea in abatement, which the court overruled (46 F.Supp. 657),
appellant asserted that the indictment should be dismissed because he was an
American citizen who had never been a subject of and had never borne allegiance
to the Empire of Japan, and also because the Act of March 21, 1942, was an
unconstitutional delegation of Congressional power. On the trial to a jury it
appeared that appellant was born in Seattle in 1918, of Japanese parents who
had come from Japan to the United States, and who had never afterward returned
to Japan; that he was educated in the Washington public schools and at the time
of his arrest was a senior in the University of Washington; that he had never
been in Japan or had any association with Japanese residing there.
The evidence showed that appellant had failed to report to the Civil Control
Station on May 11 or May 12, 1942, as directed, to register for evacuation from
the military area. He admitted failure to do so, and stated it had at all times
been his belief that he would be waiving his rights as an American citizen by
so [***1778] doing. The evidence also showed that for like reason
he was away from his place of residence after 8:00 p.m. on May 9, 1942. The
jury returned a verdict of guilty on both counts and appellant was sentenced to
imprisonment for a term of three months on each, the sentences to run
concurrently.
[***HR1] [1]
On appeal the Court of Appeals for the Ninth Circuit certified to us questions
of law upon which it desired instructions [*85] for the decision of
the case. See § 239 of the Judicial Code as amended, 28 U. S. C. § 346. Acting
under the authority conferred upon us by that section we ordered that the
entire record be certified to this Court so that we might proceed to a decision
of the matter in controversy in the same manner as if it had been brought here
by appeal. Since the sentences of three months each imposed by the district
court on the two counts were ordered to run concurrently, it will be
unnecessary to consider questions raised with respect to the first count if we
find that the conviction on the second count, for violation of the curfew
order, must be sustained. Brooks v. United States, 267 U.S. 432,
441; Gorin v. United States, 312 U.S. 19, 33.
The curfew order which appellant violated, and to which the sanction prescribed
by the Act of Congress has been deemed to attach, purported to be issued
pursuant to an Executive Order of the President. In passing upon the authority
of the military commander to make and execute the order, it becomes necessary
to consider in some detail the official action which preceeded or accompanied
the order and from which it derives its purported authority.
On December 8, 1941, one day after the bombing of Pearl Harbor by a Japanese
air force, Congress declared war against [**1379] Japan. 55 Stat.
795. On February 19, 1942, the President promulgated Executive Order No. 9066.
7 Federal Register 1407. The Order recited that "the successful
prosecution of the war requires every possible protection against espionage and
against sabotage to national-defense material, national-defense premises, and
national-defense utilities as defined in Section 4, Act of April 20, 1918, 40
Stat. 533, as amended by the Act of November 30, 1940, 54 Stat. 1220, and the
Act of August 21, 1941, 55 Stat. 655." By virtue of the authority vested
[*86] in him as President and as Commander in Chief of the Army and
Navy, the President purported to "authorize and direct the Secretary of
War, and the Military Commanders whom he may from time to time designate,
whenever he or any designated Commander deems such action necessary or
desirable, to prescribe military areas in such places and of such extent as he
or the appropriate Military Commander may determine, from which any or all
persons may be excluded, and with respect to which, the right of any person to
enter, remain in, or leave shall be subject to whatever restrictions the Secretary
of War or the appropriate Military Commander may impose in his
discretion."
On February 20, 1942, the Secretary of War designated Lt. General J. L. DeWitt
as Military Commander of the Western Defense Command, comprising the Pacific
Coast states and some others, to carry out there the duties prescribed by
Executive Order No. 9066. On March 2, 1942, General DeWitt promulgated Public
Proclamation No. 1. 7 Federal Register 2320. The proclamation recited that the
entire Pacific Coast "by its geographical location is particularly subject
to attack, to attempted invasion by the armed forces of nations with which the
United States is now at war, and, in connection therewith, is subject to
espionage and acts of sabotage, thereby requiring the adoption of military
measures necessary [***1779] to establish safeguards against such
enemy operations." It stated that "the present situation requires as
a matter of military necessity the establishment in the territory embraced by
the Western Defense Command of Military Areas and Zones thereof"; it
specified and designated as military areas certain areas within the Western
Defense Command; and it declared that "such persons or classes of persons
as the situation may require" would, by subsequent proclamation, be
excluded from certain of these [*87] areas, but might be permitted
to enter or remain in certain others, under regulations and restrictions to be
later prescribed. Among the military areas so designated by Public Proclamation
No. 1 was Military Area No. 1, which embraced, besides the southern part of
Arizona, all the coastal region of the three Pacific Coast states, including
the City of Seattle, Washington, where appellant resided. Military Area No. 2,
designated by the same proclamation, included those parts of the coastal states
and of Arizona not placed within Military Area No. 1.
Public Proclamation No. 2 of March 16, 1942, issued by General DeWitt, made
like recitals and designated further military areas and zones. It contained
like provisions concerning the exclusion, by subsequent proclamation, of
certain persons or classes of persons from these areas, and the future
promulgation of regulations and restrictions applicable to persons remaining
within them. 7 Federal Register 2405.
An Executive Order of the President, No. 9102, of March 18, 1942, established
the War Relocation Authority, in the Office for Emergency Management of the
Executive Office of the President; it authorized the Director of War Relocation
Authority to formulate and effectuate a program for the removal, relocation,
maintenance and supervision of persons designated under Executive Order No.
9066, already referred to; and it conferred on the Director authority to
prescribe regulations necessary or desirable to promote the effective execution
of the program. 7 Federal Register 2165.
Congress, by the Act of March 21, 1942, provided: "That whoever shall
enter, remain in, leave, or commit any act in any military area or military
zone prescribed, under the authority of an Executive order of the President, by
the Secretary of War, or by any military commander designated by the Secretary
[**1380] of War, contrary to the restrictions applicable to any
such area or zone or contrary [*88] to the order of the Secretary
of War or any such military commander, shall, if it appears that he knew or
should have known of the existence and extent of the restrictions or order and
that his act was in violation thereof, be guilty of a misdemeanor and upon
conviction shall be liable" to fine or imprisonment, or both.
Three days later, on March 24, 1942, General DeWitt issued Public Proclamation
No. 3. 7 Federal Register 2543. After referring to the previous designation of
military areas by Public Proclamations Nos. 1 and 2, it recited that ". .
. the present situation within these Military Areas and Zones requires as a
matter of military necessity the establishment of certain regulations
pertaining to all enemy aliens and all persons of Japanese ancestry within said
Military Areas and Zones . . ." It accordingly declared and established
that from and after March 27, 1942, "all alien Japanese, all alien
Germans, all alien Italians, and all persons of Japanese ancestry residing or
being within the geographical limits of Military Area No. 1 . . . shall be within
their place of residence between the hours of 8:00 P. M. and 6:00 A. M., which
period is hereinafter referred to as the hours of curfew." It also imposed
certain other restrictions on persons of Japanese ancestry, and provided that
any person violating the regulations would be subject to the criminal penalties
provided by [***1780] the Act of Congress of March 21, 1942.
Beginning on March 24, 1942, the military commander issued a series of Civilian
Exclusion Orders pursuant to the provisions of Public Proclamation No. 1. Each
such order related to a specified area within the territory of his command. The
order applicable to appellant was Civilian Exclusion Order No. 57 of May 10,
1942. 7 Federal Register 3725. It directed that from and after 12:00 noon, May 16,
1942, all persons of Japanese ancestry, both alien and non-alien, be excluded
from a specified portion of Military Area No. 1 in Seattle, including
appellant's place of residence, [*89] and it required a member of
each family, and each individual living alone, affected by the order to report
on May 11 or May 12 to a designated Civil Control Station in Seattle. Meanwhile
the military commander had issued Public Proclamation No. 4 of March 27, 1942,
which recited the necessity of providing for the orderly evacuation and
resettlement of Japanese within the area, and prohibited all alien Japanese and
all persons of Japanese ancestry from leaving the military area until future
orders should permit. 7 Federal Register 2601.
Appellant does not deny that he knowingly failed to obey the curfew order as
charged in the second count of the indictment, or that the order was authorized
by the terms of Executive Order No. 9066, or that the challenged Act of
Congress purports to punish with criminal penalties disobedience of such an
order. His contentions are only that Congress unconstitutionally delegated its
legislative power to the military commander by authorizing him to impose the
challenged regulation, and that, even if the regulation were in other respects
lawfully authorized, the Fifth Amendment prohibits the discrimination made
between citizens of Japanese descent and those of other ancestry.
It will be evident from the legislative history that the Act of March 21, 1942,
contemplated and authorized the curfew order which we have before us. The bill
which became the Act of March 21, 1942, was introduced in the Senate on March
9th and in the House on March 10th at the request of the Secretary of War who,
in letters to the Chairman of the Senate Committee on Military Affairs and to
the Speaker of the House, stated explicitly that its purpose was to provide
means for the enforcement of orders issued under Executive Order No. 9066. This
appears in the committee reports on the bill, which set out in full the Executive
Order and the Secretary's letter. 88 Cong. Rec. 2722, 2725; H. R. Rep. No.
1906, 77th Cong., [*90] 2d Sess.; S. Rep. No. 1171, 77th Cong., 2d
Sess. And each of the committee reports expressly mentions curfew orders as one
of the types of restrictions which it was deemed desirable to enforce by
criminal sanctions.
When the bill was under consideration, General DeWitt had published his
Proclamation No. 1 of March 2, 1942, establishing Military Areas Nos. 1 and 2,
and that Proclamation was before Congress. S. Rep. No. 1171, 77th Cong., 2d
Sess., p. 2; see [**1381] also 88 Cong. Rec. 2724. A letter of the
Secretary to the Chairman of the House Military Affairs Committee, of March 14,
1942, informed Congress that "General DeWitt is strongly of the opinion that
the bill, when enacted, should be broad enough to enable the Secretary of War
or the appropriate military commander to enforce curfews and other restrictions
within military areas and zones"; and that General DeWitt had
"indicated that he was prepared to enforce certain restrictions at once
for the purpose of protecting certain vital national defense interests but did
not desire to proceed until enforcement machinery had been set up." H. R.
Rep. No. 1906, 77th Cong., 2d Sess., p. 3. See also letter of the Acting
Secretary of War to the Chairman of the Senate Military Affairs Committee,
March 13, 1942, 88 Cong. Rec. 2725.
[***1781] The Chairman of the Senate Military Affairs Committee
explained on the floor of the Senate that the purpose of the proposed
legislation was to provide means of enforcement of curfew orders and other
military orders made pursuant to Executive Order No. 9066. He read General
DeWitt's Public Proclamation No. 1, and statements from newspaper reports that
"evacuation of the first Japanese aliens and American-born Japanese"
was about to begin. He also stated to the Senate that "reasons for
suspected widespread fifth-column activity among Japanese" were to be
found in the system of dual citizenship which Japan deemed applicable to American-born
[*91] Japanese, and in the propaganda disseminated by Japanese
consuls, Buddhist priests and other leaders, among American-born children of
Japanese. Such was stated to be the explanation of the contemplated evacuation
from the Pacific Coast area of persons of Japanese ancestry, citizens as well
as aliens. 88 Cong. Rec. 2722-26; see also pp. 2729-30. Congress also had
before it the Preliminary Report of a House Committee investigating national
defense migration, of March 19, 1942, which approved the provisions of
Executive Order No. 9066, and which recommended the evacuation, from military
areas established under the Order, of all persons of Japanese ancestry,
including citizens. H. R. Rep. No. 1911, 77th Cong., 2d Sess. The proposed
legislation provided criminal sanctions for violation of orders, in terms broad
enough to include the curfew order now before us, and the legislative history
demonstrates that Congress was advised that curfew orders were among those
intended, and was advised also that regulation of citizen and alien Japanese
alike was contemplated.
[***HR2] [2]
The conclusion is inescapable that Congress, by the Act of March 21, 1942,
ratified and confirmed Executive Order No. 9066. Prize Cases, 2 Black
635, 671; Hamilton v. Dillin, 21 Wall. 73, 96-97; United
States v. Heinszen & Co., 206 U.S. 370, 382-84; Tiaco v. Forbes,
228 U.S. 549, 556; Isbrandtsen-Moller Co. v. United States, 300
U.S. 139, 146-48; Swayne & Hoyt, Ltd. v. United States, 300
U.S. 297, 300-03; Mason Co. v. Tax Comm'n, 302 U.S. 186, 208. And
so far as it lawfully could, Congress authorized and implemented such curfew
orders as the commanding officer should promulgate pursuant to the Executive
Order of the President. The question then is not one of Congressional power to
delegate to the President the promulgation of the Executive Order, but whether,
acting in cooperation, Congress and the Executive have constitutional authority
to impose the curfew [*92] restriction here complained of. We must
consider also whether, acting together, Congress and the Executive could leave
it to the designated military commander to appraise the relevant conditions and
on the basis of that appraisal to say whether, under the circumstances, the
time and place were appropriate for the promulgation of the curfew order and
whether the order itself was an appropriate means of carrying out the Executive
Order for the "protection against espionage and against sabotage" to
national defense materials, premises and utilities. For reasons presently to be
stated, we conclude that it was within the constitutional power of Congress and
the executive arm of the Government to prescribe this curfew order for the
period under consideration and that its promulgation by the military commander
involved no unlawful delegation of legislative power.
Executive Order No. 9066, promulgated in time of war for the declared purpose
[**1382] of prosecuting the war by protecting national defense
resources from sabotage and espionage, [***1782] and the Act of
March 21, 1942, ratifying and confirming the Executive Order, were each an
exercise of the power to wage war conferred on the Congress and on the
President, as Commander in Chief of the armed forces, by Articles I and II of
the Constitution. See Ex parte Quirin, 317 U.S. 1, 25-26. We have no
occasion to consider whether the President, acting alone, could lawfully have
made the curfew order in question, or have authorized others to make it. For
the President's action has the support of the Act of Congress, and we are
immediately concerned with the question whether it is within the constitutional
power of the national government, through the joint action of Congress and the
Executive, to impose this restriction as an emergency war measure. The exercise
of that power here involves no question of martial law or trial by military
tribunal. Cf. Ex parte Milligan, 4 Wall. 2; Ex parte Quirin, supra.
Appellant has been [*93] tried and convicted in the civil courts
and has been subjected to penalties prescribed by Congress for the acts
committed.
[***HR3] [3]
[***HR4] [4]
The war power of the national government is "the power to wage war
successfully." See Charles Evans Hughes, War Powers Under the
Constitution, 42 A. B. A. Rep. 232, 238. It extends to every matter and
activity so related to war as substantially to affect its conduct and progress.
The power is not restricted to the winning of victories in the field and the
repulse of enemy forces. It embraces every phase of the national defense,
including the protection of war materials and the members of the armed forces
from injury and from the dangers which attend the rise, prosecution and
progress of war. Prize Cases, supra; Miller v. United States, 11
Wall. 268, 303-14; Stewart v. Kahn, 11 Wall. 493, 506-07; Selective
Draft Law Cases, 245 U.S. 366; McKinley v. United States, 249
U.S. 397; United States v. Macintosh, 283 U.S. 605, 622-23. Since
the Constitution commits to the Executive and to Congress the exercise of the
war power in all the vicissitudes and conditions of warfare, it has necessarily
given them wide scope for the exercise of judgment and discretion in
determining the nature and extent of the threatened injury or danger and in the
selection of the means for resisting it. Ex parte Quirin, supra, 28-29;
cf. Prize Cases, supra, 670; Martin v. Mott, 12 Wheat. 19,
29. Where, as they did here, the conditions call for the exercise of judgment
and discretion and for the choice of means by those branches of the Government
on which the Constitution has placed the responsibility of war-making, it is
not for any court to sit in review of the wisdom of their action or substitute
its judgment for theirs.
[***HR5] [5]
The actions taken must be appraised in the light of the conditions with which
the President and Congress were confronted in the early months of 1942, many of
which, [*94] since disclosed, were then peculiarly within the
knowledge of the military authorities. On December 7, 1941, the Japanese air
forces had attacked the United States Naval Base at Pearl Harbor without
warning, at the very hour when Japanese diplomatic representatives were
conducting negotiations with our State Department ostensibly for the peaceful
settlement of differences between the two countries. Simultaneously or nearly
so, the Japanese attacked Malaysia, Hong Kong, the Philippines, and Wake and
Midway Islands. On the [***1783] following day their army invaded
Thailand. Shortly afterwards they sank two British battleships. On December
13th, Guam was taken. On December 24th and 25th they captured Wake Island and
occupied Hong Kong. On January 2, 1942, Manila fell, and on February 10th
Singapore, Britain's great naval base in the East, was taken. On February 27th
the battle of the Java Sea resulted in a disastrous naval defeat to the United
Nations. By the 9th of March Japanese forces had established control over the
Netherlands East Indies; Rangoon and Burma were occupied; Bataan and Corregidor
were under attack.
Although the results of the attack on Pearl Harbor were not fully disclosed
until much later, it was known that the damage [**1383] was
extensive, and that the Japanese by their successes had gained a naval
superiority over our forces in the Pacific which might enable them to seize
Pearl Harbor, our largest naval base and the last stronghold of defense lying
between Japan and the west coast. That reasonably prudent men charged with the
responsibility of our national defense had ample ground for concluding that they
must face the danger of invasion, take measures against it, and in making the
choice of measures consider our internal situation, cannot be doubted.
The challenged orders were defense measures for the avowed purpose of
safeguarding the military area in question, at a time of threatened air raids
and invasion [*95] by the Japanese forces, from the danger of
sabotage and espionage. As the curfew was made applicable to citizens residing
in the area only if they were of Japanese ancestry, our inquiry must be whether
in the light of all the facts and circumstances there was any substantial basis
for the conclusion, in which Congress and the military commander united, that
the curfew as applied was a protective measure necessary to meet the threat of
sabotage and espionage which would substantially affect the war effort and
which might reasonably be expected to aid a threatened enemy invasion. The
alternative which appellant insists must be accepted is for the military
authorities to impose the curfew on all citizens within the military area, or
on none. In a case of threatened danger requiring prompt action, it is a choice
between inflicting obviously needless hardship on the many, or sitting passive
and unresisting in the presence of the threat. We think that constitutional
government, in time of war, is not so powerless and does not compel so hard a
choice if those charged with the responsibility of our national defense have
reasonable ground for believing that the threat is real.
When the orders were promulgated there was a vast concentration, within
Military Areas Nos. 1 and 2, of installations and facilities for the production
of military equipment, especially ships and airplanes. Important Army and Navy
bases were located in California and Washington. Approximately one-fourth of
the total value of the major aircraft contracts then let by Government
procurement officers were to be performed in the State of California.
California ranked second, and Washington fifth, of all the states of the Union
with respect to the value of shipbuilding contracts to be performed. n1
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 State Distribution of War Supply and Facility Contracts -- June 1940 through
December 1941 (issued by Office of Production Management, Bureau of Research
and Statistics, January 18, 1942); Ibid. -- Cumulative through February
1943 (issued by War Production Board, Statistics Division, April 3, 1943).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*96] In the critical days of March 1942, the danger to our war
production by sabotage and espionage in this area seems obvious. The German
invasion of the Western European countries had given ample warning to the world
of the menace of the "fifth column." Espionage by persons in sympathy
with the Japanese Government had been found to have [***1784] been
particularly effective in the surprise attack on Pearl Harbor. n2 At a time of
threatened Japanese attack upon this country, the nature of our inhabitants' attachments
to the Japanese enemy was consequently a matter of grave concern. Of the
126,000 persons of Japanese descent in the United States, citizens and
non-citizens, approximately 112,000 resided in California, Oregon and
Washington at the time of the adoption of the military regulations. Of these
approximately two-thirds are citizens because born in the United States. Not
only did the great majority of such persons reside within the Pacific Coast
states but they were concentrated in or near three of the large cities,
Seattle, Portland and Los Angeles, all in Military Area No. 1. n3
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 See "Attack upon Pearl Harbor by Japanese Armed Forces," Report of
the Commission Appointed by the President, dated January 23, 1942, S. Doc. No.
159, 77th Cong., 2d Sess., pp. 12-13.
n3 Sixteenth Census of the United States, for 1940, Population, Second Series,
Characteristics of the Population (Dept. of Commerce): California, pp. 10, 61;
Oregon, pp. 10, 50; Washington, pp. 10, 52. See also H. R. Rep. No. 2124, 77th
Cong., 2d Sess., pp. 91-100.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**1384] There is support for the view that social, economic and
political conditions which have prevailed since the close of the last century,
when the Japanese began to come to this country in substantial numbers, have
intensified their solidarity and have in large measure prevented their
assimilation as an integral part of the white population. n4 In addition, large
numbers of children of Japanese parentage [*97] are sent to
Japanese language schools outside the regular hours of public schools in the
locality. Some of these schools are generally believed to be sources of Japanese
nationalistic propaganda, cultivating allegiance to Japan. n5 Considerable
numbers, estimated to be approximately 10,000, of American-born children of
Japanese parentage have been sent to Japan for all or a part of their
education. n6
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n4 Federal legislation has denied to the Japanese citizenship by naturalization
(R. S. § 2169; 8 U. S. C. § 703; see Ozawa v. United States, 260
U.S. 178), and the Immigration Act of 1924 excluded them from admission into
the United States. 43 Stat. 161, 8 U. S. C. § 213. State legislation has denied
to alien Japanese the privilege of owning land. 1 California General Laws
(Deering, 1931), Act 261; 5 Oregon Comp. Laws Ann. (1940), § 61-102; 11
Washington Rev. Stat. Ann. (Remington, 1933), §§ 10581-10582. It has also
sought to prohibit intermarriage of persons of Japanese race with Caucasians.
Montana Rev. Codes (1935), § 5702. Persons of Japanese descent have often been
unable to secure professional or skilled employment except in association with
others of that descent, and sufficient employment opportunities of this
character have not been available. Mears, Resident Orientals on the American
Pacific Coast (1927), pp. 188, 198-209, 402-03; H. R. Rep. No. 2124, 77th Cong.,
2d Sess., pp. 101-38.
n5 Hearings before the Select Committee Investigating National Defense
Migration, House of Representatives, 77th Cong., 2d Sess., pp. 11702, 11393-94,
11348.
n6 H. R. Rep. No. 1911, 77th Cong., 2d Sess., p. 16.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Congress and the Executive, including the military commander, could have
attributed special significance, in its bearing on the loyalties of persons of
Japanese descent, to the maintenance by Japan of its system of dual
citizenship. Children born in the United States of Japanese alien parents, and
especially those children born before December 1, 1924, are under many
circumstances deemed, by Japanese law, to be citizens of Japan. n7 No
[*98] official census of those whom Japan regards as having thus
retained Japanese citizenship is available, but there is [***1785]
ground for the belief that the number is large. n8
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n7 Nationality Law of Japan, Article 1 and Article 20, § 3, and Regulations
(Ordinance No. 26) of November 17, 1924, -- all printed in Flournoy and Hudson,
Nationality Laws (1929), pp. 382, 384-87. See also Foreign Relations of the
United States, 1924, vol. 2, pp. 411-13.
n8 Statistics released in 1927 by the Consul General of Japan at San Francisco
asserted that over 51,000 of the approximately 63,000 American-born persons of
Japanese parentage then in the western part of the United States held Japanese
citizenship. Mears, Resident Orientals on the American Pacific Coast, pp.
107-08, 429. A census conducted under the auspices of the Japanese government
in 1930 asserted that approximately 47% of American-born persons of Japanese
parentage in California held dual citizenship. Strong, The Second-Generation
Japanese Problem (1934), p. 142.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The large number of resident alien Japanese, approximately one-third of all
Japanese inhabitants of the country, are of mature years and occupy positions
of influence in Japanese communities. The association of influential Japanese
residents with Japanese Consulates has been deemed a ready means for the
dissemination of propaganda and for the maintenance of the influence of the
Japanese Government with the Japanese population in this country. n9
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n9 H. R. Rep. No. 1911, 77th Cong., 2d Sess., p. 17.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
As a result of all these conditions affecting the life of the Japanese, both
aliens and citizens, in the Pacific Coast area, there has been relatively
little social intercourse between them and the white population. The
restrictions, both practical and legal, affecting the privileges and
opportunities afforded to persons of Japanese extraction residing in the United
States, [**1385] have been sources of irritation and may well have
tended to increase their isolation, and in many instances their attachments to
Japan and its institutions.
Viewing these data in all their aspects, Congress and the Executive could
reasonably have concluded that these conditions have encouraged the continued
attachment of members of this group to Japan and Japanese institutions.
[*99] These are only some of the many considerations which those
charged with the responsibility for the national defense could take into
account in determining the nature and extent of the danger of espionage and
sabotage, in the event of invasion or air raid attack. The extent of that
danger could be definitely known only after the event and after it was too late
to meet it. Whatever views we may entertain regarding the loyalty to this
country of the citizens of Japanese ancestry, we cannot reject as unfounded the
judgment of the military authorities and of Congress that there were disloyal
members of that population, whose number and strength could not be precisely
and quickly ascertained. We cannot say that the war-making branches of the
Government did not have ground for believing that in a critical hour such
persons could not readily be isolated and separately dealt with, and
constituted a menace to the national defense and safety, which demanded that
prompt and adequate measures be taken to guard against it.
Appellant does not deny that, given the danger, a curfew was an appropriate
measure against sabotage. It is an obvious protection against the perpetration
of sabotage most readily committed during the hours of darkness. If it was an
appropriate exercise of the war power its validity is not impaired because it
has restricted the citizen's liberty. Like every military control of the
population of a dangerous zone in war time, it necessarily involves some
infringement of individual liberty, just as does the police establishment of
fire lines during a fire, or the confinement of people to their houses during
an air raid alarm -- neither of which could be thought to be an infringement of
constitutional right. Like them, the validity of the restraints of the curfew
order depends on all the conditions which obtain at the time the curfew is
imposed and which support the order imposing it.
[*100]
[***HR6] [6]
[***HR7] [7]
[***HR8] [8]
But appellant insists that the exercise of the power is inappropriate
[***1786] and unconstitutional because it discriminates against
citizens of Japanese ancestry, in violation of the Fifth Amendment. The Fifth
Amendment contains no equal protection clause and it restrains only such discriminatory
legislation by Congress as amounts to a denial of due process. Detroit Bank
v. United States, 317 U.S. 329, 337-38, and cases cited. Congress may
hit at a particular danger where it is seen, without providing for others which
are not so evident or so urgent. Keokee Coke Co. v. Taylor, 234
U.S. 224, 227.
Distinctions between citizens solely because of their ancestry are by their
very nature odious to a free people whose institutions are founded upon the
doctrine of equality. For that reason, legislative classification or
discrimination based on race alone has often been held to be a denial of equal
protection. Yick Wo v. Hopkins, 118 U.S. 356; Yu Cong Eng
v. Trinidad, 271 U.S. 500; Hill v. Texas, 316 U.S. 400. We
may assume that these considerations would be controlling here were it not for
the fact that the danger of espionage and sabotage, in time of war and of
threatened invasion, calls upon the military authorities to scrutinize every
relevant fact bearing on the loyalty of populations in the danger areas.
Because racial discriminations are in most circumstances irrelevant and
therefore prohibited, it by no means follows that, in dealing with the perils
of war, Congress and the Executive are wholly precluded from taking into
account those facts and circumstances which are relevant to measures for our
national defense and for the successful prosecution of the war, and which may
in fact place citizens of one ancestry in a different category from others.
"We must never forget, that it is a constitution we are
expounding," "a constitution intended to endure for ages to come,
and, consequently, to be adapted to the various crises of human
[*101] affairs." McCulloch v. Maryland, 4 Wheat.
316, 407, 415. [**1386] The adoption by Government, in the crisis
of war and of threatened invasion, of measures for the public safety, based
upon the recognition of facts and circumstances which indicate that a group of
one national extraction may menace that safety more than others, is not wholly
beyond the limits of the Constitution and is not to be condemned merely because
in other and in most circumstances racial distinctions are irrelevant. Cf. Clarke
v. Deckebach, 274 U.S. 392, and cases cited.
Here the aim of Congress and the Executive was the protection against sabotage
of war materials and utilities in areas thought to be in danger of Japanese
invasion and air attack. We have stated in detail facts and circumstances with
respect to the American citizens of Japanese ancestry residing on the Pacific
Coast which support the judgment of the war-waging branches of the Government
that some restrictive measure was urgent. We cannot say that these facts and
circumstances, considered in the particular war setting, could afford no ground
for differentiating citizens of Japanese ancestry from other groups in the
United States. The fact alone that attack on our shores was threatened by Japan
rather than another enemy power set these citizens apart from others who have
no particular associations with Japan.
Our investigation here does not go beyond the inquiry whether, in the light of
all the relevant circumstances preceding and attending their promulgation, the
challenged orders and statute afforded a reasonable basis for the action taken
in imposing the curfew. We cannot close our eyes to the fact, demonstrated by
experience, that in time of war residents having ethnic affiliations with an
invading enemy may be a greater source of danger than those of a different
[***1787] ancestry. Nor can we deny that Congress, and the military
authorities acting with its [*102] authorization, have
constitutional power to appraise the danger in the light of facts of public
notoriety. We need not now attempt to define the ultimate boundaries of the war
power. We decide only the issue as we have defined it -- we decide only that
the curfew order as applied, and at the time it was applied, was within the
boundaries of the war power. In this case it is enough that circumstances
within the knowledge of those charged with the responsibility for maintaining
the national defense afforded a rational basis for the decision which they
made. Whether we would have made it is irrelevant.
[***HR9] [9]
What we have said also disposes of the contention that the curfew order
involved an unlawful delegation by Congress of its legislative power. The
mandate of the Constitution that all legislative power granted "shall be
vested in Congress" has never been thought, even in the administration of
civil affairs, to preclude Congress from resorting to the aid of executive or
administrative officers in determining by findings whether the facts are such
as to call for the application of previously adopted legislative standards or
definitions of Congressional policy.
The purpose of Executive Order No. 9066, and the standard which the President
approved for the orders authorized to be promulgated by the military commander
-- as disclosed by the preamble of the Executive Order -- was the protection of
our war resources against espionage and sabotage. Public Proclamations Nos. 1
and 2 by General DeWitt, contain findings that the military areas created and
the measures to be prescribed for them were required to establish safeguards
against espionage and sabotage. Both the Executive Order and the Proclamations
were before Congress when the Act of March 21, 1942, was under consideration.
To the extent that the Executive Order authorized orders to be promulgated by
the military commander to accomplish the declared purpose of the
[*103] Order, and to the extent that the findings in the
Proclamations establish that such was their purpose, both have been approved by
Congress.
It is true that the Act does not in terms establish a particular standard to
which orders of the military commander are to conform, or require findings to be
made as a prerequisite to any order. But the Executive Order, the Proclamations
and the statute are not to be read in isolation [**1387] from each
other. They were parts of a single program and must be judged as such. The Act
of March 21, 1942, was an adoption by Congress of the Executive Order and of
the Proclamations. The Proclamations themselves followed a standard authorized
by the Executive Order -- the necessity of protecting military resources in the
designated areas against espionage and sabotage. And by the Act, Congress gave
its approval to that standard. We have no need to consider now the validity of
action if taken by the military commander without conforming to this standard
approved by Congress, or the validity of orders made without the support of
findings showing that they do so conform. Here the findings of danger from
espionage and sabotage, and of the necessity of the curfew order to protect
against them, have been duly made. General DeWitt's Public Proclamation No. 3,
which established the curfew, merely prescribed regulations of the type and in
the manner which Public Proclamations Nos. 1 and 2 had announced would be
prescribed at a future date, and was thus founded on the findings of
Proclamations Nos. 1 and 2.
The military commander's appraisal of facts in the light of the authorized
standard, and the inferences which he drew from those facts, involved the
exercise of his informed judgment. But as we have [***1788] seen,
those facts, and the inferences which could be rationally drawn from them,
support the judgment of the military commander, that [*104] the
danger of espionage and sabotage to our military resources was imminent, and
that the curfew order was an appropriate measure to meet it.
[***HR10] [10]
Where, as in the present case, the standard set up for the guidance of the
military commander, and the action taken and the reasons for it, are in fact
recorded in the military orders, so that Congress, the courts and the public
are assured that the orders, in the judgment of the commander, conform to the
standards approved by the President and Congress, there is no failure in the
performance of the legislative function. Opp Cotton Mills v. Administrator,
312 U.S. 126, 142-46, and cases cited. The essentials of that function are the
determination by Congress of the legislative policy and its approval of a rule
of conduct to carry that policy into execution. The very necessities which
attend the conduct of military operations in time of war in this instance as in
many others preclude Congress from holding committee meetings to determine
whether there is danger, before it enacts legislation to combat the danger.
[***HR11] [11]
The Constitution as a continuously operating charter of government does not
demand the impossible or the impractical. The essentials of the legislative
function are preserved when Congress authorizes a statutory command to become
operative, upon ascertainment of a basic conclusion of fact by a designated
representative of the Government. Cf. The Aurora, 7 Cranch 382; United
States v. Chemical Foundation, 272 U.S. 1, 12. The present statute,
which authorized curfew orders to be made pursuant to Executive Order No. 9066
for the protection of war resources from espionage and sabotage, satisfies
those requirements. Under the Executive Order the basic facts, determined by
the military commander in the light of knowledge then available, were whether
that danger existed and whether a curfew order was an appropriate means of
minimizing the danger. Since his findings to [*105] that effect
were, as we have said, not without adequate support, the legislative function
was performed and the sanction of the statute attached to violations of the
curfew order. It is unnecessary to consider whether or to what extent such
findings would support orders differing from the curfew order.
The conviction under the second count is without constitutional infirmity.
Hence we have no occasion to review the conviction on the first count since, as
already stated, the sentences on the two counts are to run concurrently and
conviction on the second is sufficient to sustain the sentence. For this reason
also it is unnecessary to consider the Government's argument that compliance
with the order to report at the Civilian Control Station did not necessarily
entail confinement in a relocation center.
Affirmed.
CONCURBY: DOUGLAS; MURPHY; RUTLEDGE
CONCUR: [**1388] MR. JUSTICE DOUGLAS, concurring:
While I concur in the result and agree substantially with the opinion of the
Court, I wish to add a few words to indicate what for me is the narrow ground
of decision.
After the disastrous bombing of Pearl Harbor the military had a grave problem
on its hands. The threat of Japanese invasion of the west coast was not
fanciful but real. The presence of many thousands of aliens and citizens of
Japanese ancestry in or near to the key points along that coast line aroused
special concern in those charged with the defense of the country. They believed
that not only among aliens but also among citizens of Japanese ancestry there
were those who would give aid and comfort to the Japanese invader and act as a
fifth column before [***1789] and during an invasion. n1 If the
military [*106] were right in their belief that among citizens of
Japanese ancestry there was an actual or incipient fifth column, we were indeed
faced with the imminent threat of a dire emergency. We must credit the military
with as much good faith in that belief as we would any other public official
acting pursuant to his duties. We cannot possibly know all the facts which lay
behind that decision. Some of them may have been as intangible and as
imponderable as the factors which influence personal or business decisions in
daily life. The point is that we cannot sit in judgment on the military
requirements of that hour. Where the orders under the present Act have some
relation to "protection against espionage and against sabotage," our
task is at an end.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 Judge Fee stated in United States v. Yasui, 48 F.Supp. 40,
44-45, the companion case to the present one, "The areas and zones
outlined in the proclamations became a theatre of operations, subjected in
localities to attack and all threatened during this period with a full scale
invasion. The danger at the time this prosecution was instituted was imminent
and immediate. The difficulty of controlling members of an alien race, many of
whom, although citizens, were disloyal with opportunities of sabotage and
espionage, with invasion imminent, presented a problem requiring for solution
ability and devotion of the highest order."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Much of the argument assumes that as a matter of policy it might have been
wiser for the military to have dealt with these people on an individual basis
and through the process of investigation and hearings separated those who were
loyal from those who were not. But the wisdom or expediency of the decision
which was made is not for us to review. Nor are we warranted where national
survival is at stake in insisting that those orders should not have been
applied to anyone without some evidence of his disloyalty. The orders as
applied to the petitioner are not to be tested by the substantial evidence
rule. Peacetime procedures do not necessarily fit wartime needs. It is said
that if citizens of Japanese ancestry were generally disloyal, treatment on a
group basis might be justified. But there is no difference in power when the
number [*107] of those who are finally shown to be disloyal or
suspect is reduced to a small per cent. The sorting process might indeed be as
time-consuming whether those who were disloyal or suspect constituted nine or
ninety-nine per cent. And the pinch of the order on the loyal citizens would be
as great in any case. But where the peril is great and the time is short,
temporary treatment on a group basis may be the only practicable expedient
whatever the ultimate percentage of those who are detained for cause. Nor
should the military be required to wait until espionage or sabotage becomes
effective before it moves.
It is true that we might now say that there was ample time to handle the
problem on the individual rather than the group basis. But military decisions must
be made without the benefit of hindsight. The orders must be judged as of the
date when the decision to issue them was made. To say that the military in such
cases should take the time to weed out the loyal from the others would be to
assume that the nation could afford to have them take the time to do it. But as
the opinion of the Court makes clear, speed and dispatch may be of the essence.
Certainly we cannot say that those charged with the defense of the nation
should have procrastinated until investigations and hearings were completed. At
that time further delay might indeed have seemed to be wholly incompatible with
military responsibilities.
[**1389] Since we cannot override the military judgment which lay
behind these orders, it seems to me necessary to concede that the army had the
power to deal temporarily with [***1790] these people on a group
basis. Petitioner therefore was not justified in disobeying the orders.
But I think it important to emphasize that we are dealing here with a problem
of loyalty not assimilation. Loyalty is a matter of mind and of heart not of
race. That indeed is the history of America. Moreover, guilt is personal
[*108] under our constitutional system. Detention for reasonable
cause is one thing. Detention on account of ancestry is another.
In this case the petitioner tendered by a plea in abatement the question of his
loyalty to the United States. I think that plea was properly stricken; military
measures of defense might be paralyzed if it were necessary to try out that
issue preliminarily. But a denial of that opportunity in this case does not
necessarily mean that petitioner could not have had a hearing on that issue in
some appropriate proceeding. Obedience to the military orders is one thing.
Whether an individual member of a group must be afforded at some stage an
opportunity to show that, being loyal, he should be reclassified is a wholly
different question.
There are other instances in the law where one must obey an order before he can
attack as erroneous the classification in which he has been placed. Thus it is
commonly held that one who is a conscientious objector has no privilege to defy
the Selective Service Act and to refuse or fail to be inducted. He must submit
to the law. But that line of authority holds that after induction he may obtain
through habeas corpus a hearing on the legality of his classification by
the draft board. n2 Whether in the present situation that remedy would be
available is one [*109] of the large and important issues reserved
by the present decision. It has been suggested that an administrative procedure
has been established to relieve against unwarranted applications of these
orders. Whether in that event the administrative remedy would be the only one
available or would have to be first exhausted is also reserved. The scope of
any relief which might be afforded -- whether the liberties of an applicant
could be restored only outside the areas in question -- is likewise a distinct
issue. But if it were plain that no machinery was available whereby the
individual could demonstrate his loyalty as a citizen in order to be
reclassified, questions of a more serious character would be presented. The
United States, however, takes no such position. We need go no further here than
to deny the individual the right to defy the law. It is sufficient to say that
he cannot test in that way the validity of the orders as applied to him.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 See United States v. Powell, 38 F.Supp. 183; Application of
Greenberg, 39 F.Supp. 13; United States v. Baird, 39 F.Supp.
392; Micheli v. Paullin, 45 F.Supp. 687; United States v. Embrey,
46 F.Supp. 916; In re Rogers, 47 F.Supp. 265; Ex parte Stewart,
47 F.Supp. 410; United States v. Smith, 48 F.Supp. 842; Ex
parte Robert, 49 F.Supp. 131; United States v. Grieme, 128
F.2d 811; Fletcher v. United States, 129 F.2d 262; Drumheller
v. Berks County Local Board No. 1, 130 F.2d 610, 612. For cases arising
under the Selective Draft Act of 1917, see United States v. Kinkead,
250 F. 692; Ex parte McDonald, 253 F. 99; Ex parte Cohen, 254 F.
711; Arbitman v. Woodside, 258 F. 441; Ex parte Thieret,
268 F. 472, 476. And see 10 Geo. Wash. L. Rev. 827.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
MR. JUSTICE MURPHY, concurring:
It is not to be doubted that the action taken by the military commander in
pursuance of the authority conferred upon him was taken in complete good faith
and in the firm conviction that it was required by considerations of public
safety and military security. Neither is it doubted that the Congress and the
Executive [***1791] working together may generally employ such
measures as are necessary and appropriate to provide for the common defense and
to wage war "with all the force necessary to make it effective." United
States v. Macintosh, 283 U.S. 605, 622. This includes authority to
exercise measures of control over persons [**1390] and property
which would not in all cases be permissible in normal times. n1
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 Schenck v. United States, 249 U.S. 47; Debs v. United
States, 249 U.S. 211; United States v. Bethlehem Steel Corp.,
315 U.S. 289, 305; Northern Pacific Ry. Co. v. North Dakota, 250 U.S.
135; Dakota Central Tel. Co. v. South Dakota, 250 U.S. 163; Highland
v. Russell Car Co., 279 U.S. 253; Selective Draft Law Cases, 245
U.S. 366.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*110] It does not follow, however, that the broad guaranties of
the Bill of Rights and other provisions of the Constitution protecting
essential liberties are suspended by the mere existence of a state of war. It
has been frequently stated and recognized by this Court that the war power, like
the other great substantive powers of government, is subject to the limitations
of the Constitution. See Ex parte Milligan, 4 Wall. 2; Hamilton
v. Kentucky Distilleries Co., 251 U.S. 146, 156; Home Building &
Loan Assn. v. Blaisdell, 290 U.S. 398, 426. We give great deference
to the judgment of the Congress and of the military authorities as to what is
necessary in the effective prosecution of the war, but we can never forget that
there are constitutional boundaries which it is our duty to uphold. It would
not be supposed, for instance, that public elections could be suspended or that
the prerogatives of the courts could be set aside, or that persons not charged
with offenses against the law of war (see Ex parte Quirin, 317 U.S. 1)
could be deprived of due process of law and the benefits of trial by jury, in
the absence of a valid declaration of martial law. Cf. Ex parte Milligan,
supra.
Distinctions based on color and ancestry are utterly inconsistent with our
traditions and ideals. They are at variance with the principles for which we
are now waging war. We cannot close our eyes to the fact that for centuries the
Old World has been torn by racial and religious conflicts and has suffered the
worst kind of anguish because of inequality of treatment for different groups.
There was one law for one and a different law for another. Nothing is written
more firmly into our law than the compact of the Plymouth voyagers to have just
[*111] and equal laws. To say that any group cannot be assimilated
is to admit that the great American experiment has failed, that our way of life
has failed when confronted with the normal attachment of certain groups to the
lands of their forefathers. As a nation we embrace many groups, some of them
among the oldest settlements in our midst, which have isolated themselves for
religious and cultural reasons.
Today is the first time, so far as I am aware, that we have sustained a
substantial restriction of the personal liberty of citizens of the United
States based upon the accident of race or ancestry. Under the curfew order here
challenged no less than 70,000 American citizens have been placed under a
special ban and deprived of their liberty because of their particular racial
inheritance. In this sense it bears a melancholy resemblance to the treatment
accorded to members of the Jewish race in Germany and in other parts of Europe.
The result is the creation in this country of two classes of citizens for the
purposes of a critical [***1792] and perilous hour -- to sanction
discrimination between groups of United States citizens on the basis of
ancestry. In my opinion this goes to the very brink of constitutional power.
Except under conditions of great emergency a regulation of this kind applicable
solely to citizens of a particular racial extraction would not be regarded as
in accord with the requirement of due process of law contained in the Fifth
Amendment. We have consistently held that attempts to apply regulatory action
to particular groups solely on the basis of racial distinction or
classification is not in accordance with due process of law as prescribed by
the Fifth and Fourteenth Amendments. Cf. Yick Wo v. Hopkins, 118
U.S. 356, 369; Yu Cong Eng v. Trinidad, 271 U.S. 500, 524-28. See
also Boyd v. Frankfort, 117 Ky. 199, 77 S. W. 669; Opinion of
the Justices, 207 Mass. 601, [**1391] [*112] 94 N.
E. 558. It is true that the Fifth Amendment, unlike the Fourteenth, contains no
guarantee of equal protection of the laws. Cf. Currin v. Wallace,
306 U.S. 1, 14. It is also true that even the guaranty of equal protection of
the laws allows a measure of reasonable classification. It by no means follows,
however, that there may not be discrimination of such an injurious character in
the application of laws as to amount to a denial of due process of law as that
term is used in the Fifth Amendment. n2 I think that point is dangerously
approached when we have one law for the majority of our citizens and another
for those of a particular racial heritage.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 For instance, if persons of an accused's race were systematically excluded
from a jury in a federal court, any conviction undoubtedly would be considered
a violation of the requirement of due process of law, even though the ground
commonly stated for setting aside convictions so obtained in state courts is
denial of equal protection of the laws. Cf. Glasser v. United States,
315 U.S. 60, with Smith v. Texas, 311 U.S. 128.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
In view, however, of the critical military situation which prevailed on the
Pacific Coast area in the spring of 1942, and the urgent necessity of taking
prompt and effective action to secure defense installations and military
operations against the risk of sabotage and espionage, the military authorities
should not be required to conform to standards of regulatory action appropriate
to normal times. Because of the damage wrought by the Japanese at Pearl Harbor
and the availability of new weapons and new techniques with greater capacity
for speed and deception in offensive operations, the immediate possibility of
an attempt at invasion somewhere along the Pacific Coast had to be reckoned
with. However desirable such a procedure might have been, the military
authorities could have reasonably concluded at [*113] the time that
determinations as to the loyalty and dependability of individual members of the
large and widely scattered group of persons of Japanese extraction on the West
Coast could not be made without delay that might have had tragic consequences.
Modern war does not always wait for the observance of procedural requirements
that are considered essential and appropriate under normal conditions.
Accordingly I think that the military arm, confronted with the peril of
imminent enemy attack and acting under the authority conferred by the Congress,
made an allowable judgment at the time the curfew restriction was imposed.
Whether such a restriction is valid today is another matter.
In voting for affirmance of the judgment I do not wish to be understood as
intimating that the military authorities in time of war are subject to no
restraints whatsoever, or that they are free to impose any restrictions they
may choose on the [***1793] rights and liberties of individual
citizens or groups of citizens in those places which may be designated as
"military areas." While this Court sits, it has the inescapable duty
of seeing that the mandates of the Constitution are obeyed. That duty exists in
time of war as well as in time of peace, and in its performance we must not
forget that few indeed have been the invasions upon essential liberties which
have not been accompanied by pleas of urgent necessity advanced in good faith
by responsible men. Cf. Mr. Justice Brandeis concurring in Whitney v. California,
274 U.S. 357, 372.
Nor do I mean to intimate that citizens of a particular racial group whose
freedom may be curtailed within an area threatened with attack should be
generally prevented from leaving the area and going at large in other areas
that are not in danger of attack and where special precautions are not needed.
Their status as citizens, though subject to requirements of national security
and [*114] military necessity, should at all times be accorded the
fullest consideration and respect. When the danger is past, the restrictions
imposed on them should be promptly removed and their freedom of action fully
restored.
MR. JUSTICE RUTLEDGE, concurring:
I concur in the Court's opinion, except for the suggestion, if that is intended
(as [**1392] to which I make no assertion), that the courts have no
power to review any action a military officer may "in his discretion"
find it necessary to take with respect to civilian citizens in military areas
or zones, once it is found that an emergency has created the conditions
requiring or justifying the creation of the area or zone and the institution of
some degree of military control short of suspending habeas corpus. Given the
generating conditions for exercise of military authority and recognizing the
wide latitude for particular applications that ordinarily creates, I do not
think it is necessary in this case to decide that there is no action a person
in the position of General DeWitt here may take, and which he may regard as
necessary to the region's or the country's safety, which will call judicial
power into play. The officer of course must have wide discretion and room for
its operation. But it does not follow there may not be bounds beyond which he
cannot go and, if he oversteps them, that the courts may not have power to
protect the civilian citizen. But in this case that question need not be faced
and I merely add my reservation without indication of opinion concerning it.