Japanese American Evacuation Cases
Supreme Court Challenges
Though the majority of the Japanese Americans on the West Coast obeyed the harsh curfews, evacuations, and detentions imposed on them in a surprisingly quiet and orderly fashion, over one hundred individuals attempted to challenge the government's orders. Most of these people were convicted in court and lacked the financial resources to appeal. But a few cases reached the Supreme Court, including Yasui v. United States, 320 U.S. 115, 63 S. Ct. 1392, 87 L. Ed. 1793 (1943), Hirabayashi v. United States, 320 U.S. 81, 63 S. Ct. 1375, 87 L. Ed. 1774 (1943), and KOREMATSU V. UNITED STATES, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944).
Minoru Yasui, an attorney from Portland, Oregon, raised the first legal test of De Witt's curfew orders. A well-educated and very patriotic U.S. citizen of Japanese ancestry, Yasui did not object to the general principle of the curfew order or to a curfew applied only to aliens. His objection was that De Witt's orders applied to all persons of Japanese ancestry, both citizens and noncitizens alike. "That order," Yasui declared, "infringed on my rights as a citizen" (Irons 1983, 84). Determined to become a TEST CASE for the constitutionality of De Witt's curfews, Yasui walked into a Portland police station on the evening of March 28, 1942, hours after the curfew was first imposed and demanded to be arrested for curfew violation.
Yasui was arrested. His case went to trial in June 1942, where he argued that Executive Order No. 9066 was unconstitutional. The judge in the case, James Alger Fee, did not return a verdict until November, when he found Yasui guilty. Fee asserted that Yasui's previous employment as a Japanese consular agent had constituted a FORFEITURE of his U.S. citizenship, and thus he was subject to the curfew order as an enemy alien (Yasui, 48 F. Supp. 40 [D. Or. 1942]). Fee sentenced Yasui to the maximum penalty, one year in prison and a fine of $5,000. The Supreme Court unanimously upheld his conviction for curfew violation, though it found that Fee had been incorrect in holding that Yasui had forfeited his U.S. citizenship.
The second test case involved Gordon Kiyoshi Hirabayashi, a 24-year-old student at the University of Washington. A committed Christian and a pacifist, Hirabayashi also decided to make himself a test case for the constitutionality of De Witt's orders, particularly the evacuation order scheduled to take effect on May 16, 1942. He therefore chose to break the curfew three times between May 4 and May 10, and recorded these instances in his diary. On May 16 Hirabayashi went to the FEDERAL BUREAU OF INVESTIGATION office in Seattle, accompanied by his lawyer, and told a special agent there that he had no choice but to reject the evacuation order.
Hirabayashi was convicted of intentionally violating De Witt's evacuation and curfew
orders. The Supreme Court ruled on Hirabayashi's case on June 21, 1943, upholding his conviction for violating curfew. The Court avoided ruling on the issue of whether evacuation was constitutional by arguing that since Hirabayashi's sentences on the two counts were to run concurrently, his conviction on the curfew violation was sufficient to sustain the sentence.
The Court did, however, rule on one important constitutional issue in Hirabayashi: the question of whether De Witt's curfew orders could be applied selectively on the basis of race. Writing for the majority, Chief Justice HARLAN F. STONE emphasized that it was necessary for the Court to defer to the military in security matters, and thus the Court was bound to accept the assertion that "military necessity" required Japanese Americans to be selectively subject to the curfew order. Stone argued that the government needed only a minimum rational basis for applying laws on a racial basis, declaring that "the nature and extent of the racial attachments of our Japanese inhabitants to the Japanese enemy were … matters of grave concern." Citing undocumented allegations about the involvement of Japanese Americans in espionage activities, Stone concluded that the "facts and circumstances" showed "that one racial group more than another" constituted "a greater source of danger" to the army's wartime efforts and thus the military was justified in applying its orders solely on the basis of race.
The third test case involved Fred Toyosaburo Korematsu, a 23-year-old welder living in San Leandro, California. Korematsu had no intention of becoming a test case for the constitutionality of De Witt's orders. He simply neglected to report for evacuation because he wanted to remain with his Caucasian fiancée and because he believed that he would not be recognized as a Japanese American. He was soon arrested by the local police and was convicted of remaining in a military area contrary to De Witt's exclusion orders.
When Korematsu's case reached the Supreme Court in 1944, the Court upheld Korematsu's conviction, arguing that the "Hirabayashi conviction and this one thus rest on the … same basic executive and military orders, all of which orders were aimed at the twin dangers of espionage and sabotage." Noting that being excluded from one's home was a "far greater deprivation" than being subjected to a curfew, Justice HUGO L. BLACK wrote in the majority opinion that "we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast area at the time they did." Black based his argument on the minimum rationality test established in Hirabayashi and on the military's assertion that Japanese Americans had to be evacuated en masse because it "was impossible to bring about an immediate SEGREGATION of the disloyal from the loyal."
But later in December 1944, the Supreme Court was faced with a more precise and pressing issue. Now came before it a matter wherein a United States loyal citizen of Japanese ancestry had been removed from employment and interned. The case of Ex Parte Endo, 323 U.S. 283 (1944), came before the Court as an appeal on a writ of HABEAS CORPUS. Mitsuye Endo was a female federal civil service employee at the California State Highway Commission. In 1942, she was dismissed from her stenography job and ordered by the military to a detention center. Endo was an U.S. citizen; her brother was serving in the U.S. Army. While at the relocation camp, her attorney filed a writ of habeas corpus in federal district court, asking for her discharge from camp and that her liberty be restored. The petition was denied and the Ninth Circuit Court of Appeals certified the matter to the U.S. Supreme Court.
Again, the high court rendered its decision without coming to the underlying constitutional issue which was argued below. The Court, however, concluded that Endo was entitled to an unconditional release by the War Relocation Authority. It approached the construction of E.O. 9066 as it would judicially approach a piece of legislation. In so doing, it concluded that E.O. 9066, along with the underlying act of March 21, 1942, which ratified and confirmed it, was a war measure. Therefore, the Court reasoned, power to detain a concededly loyal citizen could not be implied from a power to protect the war effort from espionage and sabotage; it afforded no basis for keeping loyal U.S. citizens of Japanese ancestry in custody on grounds of community hostility.
Interestingly, the U.S. government, apprehending an unfavorable decision in Endo, announced the end of the exclusion order just the day before the Supreme Court issued its opinion. The last of ten major detention camps, Tule Lake, closed in March 1946.
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