Executive Order 9066
By: Franklin D. Roosevelt
Date: February 19, 1942
Source: President. Executive Order 9066. "Authorizing the Secretary of War to Prescribe Military Areas." Federal Register 7, no. 38, 1407, February 19, 1942. Available online at http://www.library.arizona.edu/images/jpamer/execordr.html; website home page: http://www.library.arizona.edu (accessed April 24, 2003).
About the Author: Franklin D. Roosevelt (1882–1945) was born in Hyde Park, New York. He survived an adulthood bout with polio and rarely revealed his dependence upon a wheelchair. He and his wife Eleanor had six children, one of whom died in infancy. First elected in 1932, Roosevelt went on to win three more bids for the presidency, causing a Constitutional Amendment limiting presidents to two terms. He died while in office in April 1945, just before the end of World War II.
Hirabayashi v. U.S.
Supreme Court decision
By: Harlan F. Stone (majority), Frank Murphy (concurrence)
Date: June 21, 1943
Source: Hirabayashi v. United States 320 U.S. 81 (1943). Reprinted in Hall, Kermit L., William M. Wiecek, and Paul Finkelman, eds. American Legal History: Cases and Materials, 2d ed. New York: Oxford University Press, 1996, 429–430.
About the Authors: Harlan F. Stone (1872–1946) came to the Supreme Court in 1925 after a stint as attorney general. He was named chief justice in 1941. One of his primary concerns while on the bench was judicial restraint. Like Stone, Frank Murphy (1890–1949) came to the Supreme Court after serving as attorney general. Appointed in 1939, Murphy consistently supported civil liberties. He was also known for his tendency to judge cases based on his conscience.
Korematsu v. U.S.
Supreme Court decision
By: Hugo L. Black (majority), Frank Murphy (dissent)
Date: December 18, 1944
Source: Korematsu v. United States 323 U.S. 214 (1944). Reprinted in Kutler, Stanley, ed. The Supreme Court and the Constitution: Readings in American Constitutional History, 3rd ed. New York: W.W. Norton, 1984, 708–712.
About the Author: Hugo Lafayette Black (1886–1971) represented Alabama in the U.S. Senate for two terms. He was appointed to the Supreme Court in 1937. His term was generally distinguished by his support of civil rights.
There has long been anti-Asian prejudice in the United States. One early sign of this was the Chinese Exclusion Act of 1882, which banned Chinese immigration for ten years and prevented Chinese already in America from becoming citizens. People who had left the country on visits back to China before the act's passage were not allowed to return. The act was made permanent in 1902. The National Origins Act of 1924 went even further, banning immigration from anywhere in East Asia. Neither act was revoked until the latter half of the twentieth century.
After the Japanese bombed Pearl Harbor on December 7, 1941, many began agitating for the removal of Japanese Americans from the West Coast. Vote-hungry politicians responded to baseless racial fears to support these demands. Businesses that competed with Japanese Americans saw the opportunity to eliminate their rivals and supported the demands as well. In response President Roosevelt issued Executive Order 9066, which Congress later ratified with legislation. Approximately two-thirds of the Japanese Americans removed and detained under the order were U.S. citizens. Those born outside the United States, the Issei, were unable to become citizens, regardless of how long they had lived in the country. Only second-generation Japanese Americans (born in the United States), the Nisei, were citizens.
This order was more damaging than anything done in the xenophobia, or fear of people of foreign origin, of World War I (1914–1918). In that conflict only those German immigrants who violated exclusion orders were forced into detention camps. During World War II (1939–1945) German Americans and Italian Americans who were not citizens were generally not relocated but only kept under curfew for a short time. In contrast, about 110,000 of the 127,000 Japanese Americans who lived on the mainland were relocated, mostly from the West Coast. Those in Hawaii were generally left alone, probably because they made up such a large percentage of the population that their removal would have disrupted the local economy.
Gordon Hirabayashi, an American citizen of Japanese ancestry, sued to challenge a curfew order issued in accordance with Executive Order 9066. He argued that Congress had illegally delegated power and that the curfew order was racial discrimination that violated the Fifth Amendment due process clause. Hirabayashi also tried to challenge the relocation order but due to his attorney's errors in preparing the record, and due to the fact that both his two jail sentences ran concurrently, the Supreme Court considered only the curfew order and not the relocation order. However, the Supreme Court did make itself clear in Hirabayashi that the president and Congress have the power to do whatever is needed in wartime.
Another Japanese American, Fred Korematsu, sued to challenge the relocation of Japanese Americans surrounding the San Leandro, California, area. He had volunteered for the army but was refused and had begun working for a defense plant before his arrest for violating the order. Korematsu initially claimed that he was a Mexican American to prevent being excluded and relocated. Then he insisted on his loyalty to America and protested the unconstitutionality of the government's relocation of people for racial reasons. Unlike the Hirabayashi case, the Supreme Court considered the relocation order itself in Korematsu.
Japanese Americans fought well in World War II in spite of, or perhaps because of, the intense racial prejudice they faced. The 442nd Regimental Combat Team in Europe, made up entirely of Japanese Americans, had the highest rate of commendations and won over 18,000 medals. Japanese Americans were not allowed to fight in the Pacific, though. Hirabayahsi and Korematsu set a dangerous precedent as they allowed the government to do anything which it saw fit in wartime.
Only in the Ex Parte Endo case, decided December 18, 1944 (the same day as Korematsu) did the Court rule somewhat in favor of Japanese Americans, determining that only those whose loyalty was questionable could be held. In Endo the Court ordered the release of Mitsuye Endo, whose loyalty was unquestioned. The Court did not rule directly on the detention issue, however, only ruling that the War Relocation Authority could not hold those whose loyalty was never doubted. Hirabayashi's case is one of the two most frequently studied Japanese-American internment cases, along with Korematsu.
It was not until 1976 that Executive Order 9066 was repealed. Moreover, the Korematsu and Hirabayashi decisions have never been formally overturned. Hirabayashi only had his conviction vacated, or pronounced invalid, in the 1980s and even then the government still defended Executive Order 9066 in the courts. Roughly ten years passed before Japanese Americans received a formal apology and it was not until the late 1980s that internees received some small compensation for their economic losses. The relocation ruined the lives of numerous Japanese Americans and cost them businesses, homes, and property. At a very basic level it demonstrated an ugly side of the United States and showed the depths to which the country might sink during war.
Primary Source: Executive Order 9066
SYNOPSIS: The president orders the secretary of war to designate areas from which civilians may be excluded and further instructs him to provide food and shelter for those excluded citizens. Roosevelt also says this executive order does not affect another order instructing the FBI to regulate alien enemies. Effectively this allows for the creation of relocation camps. Although the order nowhere mentions Japanese Americans they were understood to be the intended target of Roosevelt's instructions.
WHEREAS 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 (U. S. C., Title 50, Sec. 104):
NOW, THEREFORE, by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby 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 actions necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commanders may determine, from which any or all persons may be excluded, and with such 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. The Secretary of War is hereby authorized to provide for residents of any such area who are excluded therefrom, such transportation, food, shelter, and other accommodations as may be necessary, in the judgment of the Secretary of War or the said Military Commander, and until other arrangements are made, to accomplish the purpose of this order. The designation of military areas in any region or locality shall supersede designations of prohibited and restricted areas by the Attorney General under the Proclamations of December 7 and 8, 1941, and shall supersede the responsibility and authority of the Attorney General under the said Proclamations in respect of such prohibited and restricted areas.
I hereby further authorize and direct the Secretary of War and the said Military Commanders to take such other steps as he or the appropriate Military Commander may deem advisable to enforce compliance with the restrictions applicable to each Military area here in above authorized to be designated, including the use of Federal troops and other Federal Agencies, with authority to accept assistance of state and local agencies.
I hereby further authorize and direct all Executive Departments, independent establishments and other Federal Agencies, to assist the Secretary of War or the said Military Commanders in carrying out this Executive Order, including the furnishing of medical aid, hospitalization, food, clothing, transportation, use of land, shelter, and other supplies, equipment, utilities, facilities and services.
This order shall not be construed as modifying or limiting in any way the authority heretofore granted under Executive Order No. 8972, dated December 12, 1941, nor shall it be construed as limiting or modifying the duty and responsibility of the Federal Bureau of Investigation, with respect to the investigation of alleged acts of sabotage or the duty and responsibility of the Attorney General and the Department of Justice under the Proclamations of December 7 and 8, 1941, prescribing regulations for the conduct and control of alien enemies, except as such duty and responsibility is superseded by the designation of military areas there under.
Franklin D. Roosevelt
February 19, 1942
Primary Source: Hirabayashi v. U.S. [excerpt]
SYNOPSIS: Justice Stone states that war can make racial distinctions necessary, even though such would normally be forbidden, in order to protect the majority of the population. However Justice Murphy's concurrence demonstrates the tenuous nature of the Court's unanimous decision to uphold the curfew. He says American law is based on a tradition requiring legal equality. Noting the unique nature of the racial restrictions imposed upon Japanese Americans he calls the curfew barely constitutional. The case was decided on June 21, 1943.
Mr. Chief Justice Stone delivered the opinion of the Court.
… 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 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… 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.…
But appellant insists that the exercise of the power is inappropriate and unconstitutional because it discriminates against citizens of Japanese ancestry.…
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.…
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.… 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.…
Mr. Justice Murphy, concurring:
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 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 purposes of a critical 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.
Primary Source: Korematsu v. U.S. [excerpt]
SYNOPSIS: In this case the U.S. Supreme Court justifies Executive Order 9066, which led to the relocation of Japanese Americans to internment camps. Justice Black claims evidence of Japanese-American disloyalty existed and argues the camps were necessary because it is impossible to separate the loyal from the disloyal. Justice Murphy's dissent challenges the blanket relocation of all Pacific Coast Japanese Americans, arguing that such exclusion is racist and that the relocated citizens posed no immediate public danger. The case was decided on December 18, 1944.
Justice Black delivered the opinion of the Court.
The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a "Military Area," contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U.S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner's loyalty to the United States.…
It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.…
[E]xclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. That there were members of the group who retained loyalties in Japan has been confirmed by investigations made subsequent to the exclusion. Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan.
We uphold the exclusion order as of the time it was made and when the petitioner violated it.… In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens.… But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.…
It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers— and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies—we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders—as inevitably it must—determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot—by availing ourselves of the calm perspective of hindsight— now say that at that time these actions were unjustified.
Justice Murphy, dissenting.
This exclusion of "all persons of Japanese ancestry, both alien and non-alien," from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over "the very brink of constitutional power" and falls into the ugly abyss of racism.
In dealing with matters relating to the prosecution and progress of a war, we must accord great respect and consideration to the judgments of the military authorities who are on the scene and who have full knowledge of the military facts. The scope of their discretion must, as a matter of necessity and common sense, be wide. And their judgments ought not to be overruled lightly by those whose training and duties ill-equip them to deal intelligently with matters so vital to the physical security of the nation.
At the same time, however, it is essential that there be definite limits to military discretion, especially where martial law has not been declared. Individuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support.…
The judicial test of whether the Government, on a plea of military necessity, can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so "immediate, imminent, and impending" as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger.… Civilian Exclusion Order No. 34, banishing from a prescribed area of the Pacific Coast "all persons of Japanese ancestry, both alien and non-alien," clearly does not meet that test. Being an obvious racial discrimination, the order deprives all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment. It further deprives these individuals of their constitutional rights to live and work where they will, to establish a home where they choose and to move about freely. In excommunicating them without benefit of hearings, this order also deprives them of all their constitutional rights to procedural due process. Yet no reasonable relation to an "immediate, imminent, and impending" public danger is evident to support this racial restriction which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law.
It must be conceded that the military and naval situation in the spring of 1942 was such as to generate a very real fear of invasion of the Pacific Coast, accompanied by fears of sabotage and espionage in that area. The military command was therefore justified in adopting all reasonable means necessary to combat these dangers. In adjudging the military action taken in light of the then apparent dangers, we must not erect too high or too meticulous standards; it is necessary only that the action have some reasonable relation to the removal of the dangers of invasion, sabotage and espionage. But the exclusion, either temporarily or permanently, of all persons with Japanese blood in their veins has no such reasonable relation. And that relation is lacking because the exclusion order necessarily must rely for its reasonableness upon the assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage and to aid our Japanese enemy in other ways. It is difficult to believe that reason, logic or experience could be marshalled in support of such an assumption.That this forced exclusion was the result in good measure of this erroneous assumption of racial guilt rather than bona fide military necessity is evidenced by the Commanding General's Final Report on the evacuation from the Pacific Coast area. In it he refers to all individuals of Japanese descent as "subversive," as belonging to "an enemy race" whose "racial strains are undiluted," and as constituting "over 112,000 potential enemies… at large today" along the Pacific Coast. In support of this blanket condemnation of all persons of Japanese descent, however, no reliable evidence is cited to show that such individuals were generally disloyal, or had generally so conducted themselves in this area as to constitute a special menace to defense installations or war industries, or had otherwise by their behavior furnished reasonable ground for their exclusion as a group.
Justification for the exclusion is sought, instead, mainly upon questionable racial and sociological grounds not ordinarily within the realm of expert military judgment, supplemented by certain semi-military conclusions drawn from an unwarranted use of circumstantial evidence.…
No one denies, of course, that there were some disloyal persons of Japanese descent on the Pacific Coast who did all in their power to aid their ancestral land. Similar disloyal activities have been engaged in by many persons of German, Italian and even more pioneer stock in our country. But to infer that examples of individual disloyalty prove group dis-loyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights.… To give constitutional sanction to that inference in this case, however well-intentioned may have been the military command on the Pacific Coast is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow.
No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry.…It is asserted merely that the loyalties of this group "were unknown and time was of the essence." Yet nearly four months elapsed after Pearl Harbor before the first exclusion order was issued.…
Moreover, there was no adequate proof that the Federal Bureau of Investigation and the military and naval intelligence services did not have the espionage and sabotage situation well in hand during this long period. Nor is there any denial of the fact that not one person of Japanese ancestry was accused or convicted of espionage or sabotage after Pearl Harbor while they were still free.…
I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution.
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