Editors’ note: This is part of our series on the 80th anniversary of Executive Order 9066, signed on Feb. 19, 1942.
On this 80th anniversary of Executive Order 9066 (EO 9066), it is more important than ever to remember the incarceration of Japanese Americans as a warning against allowing the mantra of national security to justify government actions based in prejudice.
In Korematsu v. United States, the Supreme Court affirmed the conviction of Fred Toyosaburo Korematsu, a 22-year-old Japanese American whose refusal to leave his home in San Leandro, California, violated one of 108 civilian exclusion orders promulgated under authority of EO 9066. In the Court’s opinion, Justice Hugo Black declared that “Korematsu was not excluded from the Military Area because of hostility to him or his race.” Instead, he explained, Japanese Americans were removed from the West Coast because of military necessity. However, as Justices Frank Murphy and Owen Roberts wrote in dissent and as has been irrefutably confirmed by a federal commission, a national apology, and reparations, Japanese Americans were removed from their West Coast homes and incarcerated because of their race.
How could the Court say that Korematsu was not about race when it and the wartime incarceration are now viewed as representing one of the most egregious racial discriminations in modern history? Today, in the midst of a national conversation on race, and as Asian Americans and as other communities of color and immigrant communities continue to be treated as suspicious threats and as “forever foreign,” Korematsu has much to teach us.
First, we need to be particularly wary when we are told that a governmental action is “not about [fill in the blank with an improper target of discrimination, e.g., race, religion]; it’s about [fill in the blank with a facially legitimate policy objective, e.g., national security, public health or safety, protecting the U.S. economy or way of life].” Despite the Court’s statement that Korematsu was not about race, the forced removal and incarceration of 120,000 persons of Japanese ancestry – one-third immigrants ineligible for citizenship and two-thirds American citizens – was the result of a history of anti-Asian hostility, laws, and practices that fed and institutionalized fears that Asian Americans would take over the country and “infect” society with what was painted as their low standard of living. Over time, the target of prejudice may change, but the pattern repeats, and constant vigilance is necessary to prevent deep-seated prejudices from influencing public policy under the guise that it will keep us safe.
Second, and relatedly, it is essential to reject arguments based on facial neutrality and instead root out policies that, by design or impact, fall most harshly on racial or religious minorities. In Trump v. Hawaii, the Court upheld the Trump administration’s travel ban, which primarily targeted nationals of majority-Muslim countries. The opinion repeatedly emphasized the fact that the proclamation was neutral on its face, stating: “The text says nothing about religion.” The Court said that Korematsu was different: “[I]t is wholly inapt to liken that morally repugnant order [in Korematsu] to a facially neutral policy denying certain foreign nationals the privilege of admission.” The Court failed to recognize that EO 9066 was also facially neutral; it similarly said nothing on its face about race. It instead authorized the Secretary of War and Military Commanders authorized by the Secretary 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.
Yet there was no question that this facially neutral executive order was issued to control only the Japanese American population on the West Coast. History is replete with laws that, although neutral on their face, target and harm vulnerable minorities. Remember, for example, Yick Wo v. Hopkins, which dealt with a San Francisco ordinance that required licenses for laundries housed in wooden buildings, most of which were run by Chinese individuals. And see the current national debate on the restriction on voting rights that, while often facially neutral, disproportionately interfere with the ability of racial minorities and the poor to vote.
Third, when a court says that a case is not about racial discrimination and instead about national security, it abandons its constitutional role to act as a check on government overreach. In Hirabayashi v. United States, upon which the Korematsu Court relied, the Court said that, where the war-making branches of government exercise their discretion, “it is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs.” And less than four years ago, in Trump v. Hawaii, the Court similarly said, “[W]e cannot substitute our own assessment for the Executive’s predictive judgments on [national security] matters, all of which ‘are delicate, complex, and involve large elements of prophecy.’”
At the same time both the Korematsu and Trump v. Hawaii Courts seemed to say that they could not question government national security decisions, they purported to articulate a standard for reviewing those decisions. The standards they articulated were, however, exceedingly low. In Korematsu, the Court said that the removal orders were constitutional because they survived a convoluted double negative: “We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour [disloyal Japanese Americans] could not readily be isolated and separately dealt with.” And, as numerous observers – including Harold Koh, Elizabeth Goitein, and Jonathan Hafetz in Just Security – have noted, the controlling legal standard today is rational basis scrutiny, under which a court will uphold executive action based on national security so long as it is “plausibly related” to the government’s stated, facially legitimate objective. That standard allows, and even requires, courts to limit the scope of their review, closing their eyes to the social reality in which a case is decided. As the majority noted in Trump v. Hawaii, “Given the standard of review, it should come as no surprise that the Court hardly ever strikes down a policy as illegitimate under rational basis scrutiny.”
By shielding government actions from any meaningful review, judicial deference provides fertile ground for overreach and fraud. In 1983, Mr. Korematsu’s and Mr. Hirabayashi’s wartime convictions were vacated (via coram nobis actions with which I was involved) on proof that the U.S. government during World War II suppressed, altered, and destroyed material evidence that contradicted its claim that the removal of Japanese Americans was based on military necessity. For example, the Final Report of General John L. DeWitt, commander of the Western Defense, made clear the racist basis for the mass removal by stating, in racially charged terms, that it was impossible to discern the loyalty of a Japanese American, no matter how much time one had. When government officials discovered that the report contradicted the government’s argument that insufficient time to assess individual loyalty was the reason for the mass removal, they ordered the report altered. That altered version was given the Supreme Court, and the Court based its Korematsu decision on the alleged, but false, lack of time for individual reviews.
Further, as the coram nobis courts found, the U.S. government withheld from the Supreme Court intelligence reports from the FBI, the FCC, and the Office of Naval Intelligence that refuted DeWitt’s claims that Japanese Americans were engaged in espionage or sabotage. In her dissent in Trump v. Hawaii, Justice Sonia Sotomayor compared the government’s refusal to disclose its Department of Homeland Security report, which outlined its process for selecting countries subject to the travel ban, with the government’s failure to disclose its intelligence reports while Korematsu was being argued during World War II. In the related travel ban case of International Refugee Assistance Project v. Trump, Maryland Federal District Court Judge Theodore Chuang asked government counsel, “Are you representing to me now as an officer of the court that there’s nothing in [the report] that’s inconsistent with the proclamation?” Recalling the suppression of evidence proved in the coram nobis cases, Judge Chuang asked, “So how is this different than Korematsu where they relied on an executive order by the president and many years after the fact, it was determined that there was information within the justice department that contradicted representation made to the court[?] . . . [C]an you assure me that there’s nothing in [the DHS report] that’s inconsistent with what’s in the proclamation because if it were, I would feel that would be a material fact that you need to disclose.” The government attorney evaded the question and declined to explain what was in the report.
All of this is to say that present constructs allow courts to ignore the realities of how racism and other forms of otherism operate in the real world. Courts continue to require proof of discriminatory intent when discrimination is sometimes shrouded in pretext and veiled behind claims of public good. They fail to recognize that historic and culturally-embedded prejudices rooted in dehumanizing and marginalizing immigrant communities and communities of color work their way into public policy, through enactment or enforcement, to which a fearful or indifferent public accedes. Policies can be neutral on their face, but, by design or effect, target racial or religious minorities, and the courts turn a blind eye.
During World War II, the Supreme Court accepted the government’s invitation to decide a fictional case. The Korematsu Court held that military necessity justified the “temporary exclusion” of Japanese Americans, despite the fact that, as of the time that the Court decided Korematsu, Japanese Americans had been incarcerated for over two-and-a-half years. The Court refused to address the lawfulness of that incarceration, saying that only the exclusion order, not the later detention, was properly before it. The Court divided the indivisible; in reality, Japanese Americans were removed from the West Coast into incarceration. While saying there would be “time enough to decide” the “serious constitutional issues” raised by detention when that order came before it, the Court ignored the fact that there were no separate orders of incarceration.
As Justice Roberts said in dissent:
This is not a case of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows. On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. . . [To decide this case as involving only a temporary exclusion order] is to shut our eyes to reality.
The Court said it was “not unmindful of the hardships imposed.” However, it is painful to imagine that a civilized society should countenance the imprisonment on U.S. soil of 120,000 men, women, and children in desolate concentration camps surrounded by barbed wire under armed guard; living in horse stalls and barracks; enduring whipping sandstorms, sweltering heat, and freezing cold; and losing, in the process, their freedom and all they had built in terms of their lives and communities.
In her dissent in Trump v. Hawaii, Justice Sotomayor similarly criticized the majority for “ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens.”
Korematsu sadly reminds us that the Court, in deferring to the government on claims of national security, in its adherence to the myth of facial neutrality, and in its failure to see how racism really operates in the United States, remains ill-equipped to help society ferret out the vast layers of prejudice against communities of color and immigrants that still exist. Those working in the trenches to fight the continuing battle against these forms of judicial blindness answer the pleas of formerly incarcerated Japanese Americans that nothing similar ever happen again to anyone.