Column: The Muslim Travel Ban And The Japanese Internment: An Ugly History Repeats Itself

By Christopher Dunn

The Supreme Court’s end-of-Term decision upholding Donald Trump’s Muslim travel ban prompted a blistering dissent from Justice Sotomayor and Justice Ginsberg equating the Court’s acceptance of the Muslim ban with its acquiescence in Korematsu v. United States to the World War II internment of over 120,000 adults and children of Japanese descent, about 70,000 of whom were American citizens. In response, the majority in the Muslim ban case — Trump v. Hawaii — insisted Korematsu “has nothing to do with this case.” Spurred perhaps by the attack from Justices Sotomayor and Ginsberg, the Trump majority further claimed to condemn and renounce Korematsu, an act many welcomed.

In truth, the Supreme Court’s treatment of the Muslim ban bears alarming parallels to its treatment of the Japanese internment. And an examination of Korematsu and of two other lesser-known Supreme Court cases dealing with the internment regime highlights the dangerous opening the Trump ruling creates for ever-more draconian measures driven by Trump’s open animus towards Muslims and others. Finally, given the reality of the Muslim ban ruling, the Supreme Court’s claimed disavowal of Korematsu rings hollow.

The Japanese Internment Cases

While many know of Korematsu, it was but one of three Supreme Court decisions on the Japanese internment regime the federal government created following the attack on Pearl Harbor in December 1941. Taken together, those cases reveal a Supreme Court unwilling to exercise its constitutional responsibility to confront naked discrimination. More significantly for contemporary purposes, they illustrate a mode of decisionmaking that highlights the dangers of the Muslim travel ban ruling.

The foundation for the Japanese internment regime was Executive Order 9066, which President Roosevelt issued in February 1942. It authorized military officials

to prescribe military areas in such places and of such extent as [they] 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.

One month later Congress enacted legislation making it a federal crime not to comply with an order issued under Executive Order 9066 and authorizing fines up to $5,000 and prison sentences up to one year.[1]

Pursuant to Executive Order 9066, Lt. General J.L. DeWitt, the military commander with authority over the western United States, issued a series of ancestry-based restrictions, starting with curfews, then evacuation orders, and, ultimately, internment. These escalating restrictions were the subject of the three separate Supreme Court decisions.

The first – and pivotal – decision was Hirabayashi v. United States,[2] issued in June 1943. Gordon Hirabayashi was an American-born citizen whose Japanese parents had immigrated to the United States and never afterwards returned to Japan. Gordon grew up in Seattle, attended public schools, and was a senior at the University of Washington when arrested in May 1942. He had never been to Japan and had no association with anyone living there.

Shortly before Hirabayashi’s arrest, DeWitt imposed overnight curfews covering Seattle and other areas that singled out people by ancestry and encompassed one group of American citizens: those of Japanese descent. Hirabayashi was convicted of violating the curfew order and separately of violating an order that required him to evacuate and report to a “Civil Control Station” in Seattle, which would lead to internment. He was sentenced to concurrent 3-month prison sentences.

In upholding Hirabayashi’s conviction, the Supreme Court started with the nearly invisible but momentous step of refusing to consider the constitutionality of the failure-to-evacuate conviction, reasoning that it need not do so because Hirabayashi had been sentenced to identical concurrent prison terms on each charge, meaning the Court could uphold the sentence so long as it could sustain the curfew charge alone. This allowed the Court to issue its foundational ruling on the Japanese internment regime scrutinizing a relatively benign overnight curfew while avoiding the much more dangerous acts of forced evacuation and internment.

Focusing exclusively on the curfew, the Supreme Court prefaced its analysis of Hirabayashi’s discrimination claim with a lengthy exegesis about the “facts and circumstances” surrounding imposition of the curfew-evacuation-internment regime, depicting Japanese-Americans as a threatening and isolated presence in the United States (a depiction subsequently shown not only to have been inaccurate but to have been contradicted by secret government reports). Against this backdrop, its legal analysis started by minimizing the significance of a curfew, likening it to police keeping people away from fires:

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.

Though the Court then noted that “[d]istinctions 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,” it quickly retreated with the assertion that this principle yields to concerns about “national defense” and “successful prosecution of the war.” And because the government was invoking such concerns to justify the singling out of citizens of Japanese descent, the Court held that the curfew need have only “a rational basis.” Finally, the Court concluded that discriminating on the basis of Japanese ancestry alone was rational: “We cannot say that these facts and circumstances, considered in the particular war setting, could afford no ground for differentiating citizens of Japanese descent from other groups in the United States.”[3]

With Hirabayashi, the die had been cast when the Supreme Court faced Fred Korematsu. Born in Oakland in 1919 to Japanese parents who had immigrated to the United States in 1905, Korematsu was arrested in San Leandro, California in May 1942 and charged with violating a DeWitt order requiring all persons of Japanese descent to evacuate the area that included San Leandro and to report to an “assembly center.” As had Hirabayashi, Korematsu challenged the constitutionality of the singling out of citizens of Japanese descent. In doing so, he argued the Court had to confront race-based detention in assessing the evacuation order, as it was undisputed the evacuation orders were part of a coordinated system of forcibly relocating those of Japanese descent to internment camps.

Though widely understood as upholding the internment of Japanese-Americans, the December 1944 ruling in Korematsu is particularly significant because in that case the Supreme Court in fact refused to address detention. Indeed, the Court devoted more of its opinion to justifying its unwillingness to address the constitutionality of race-based internment (1050 words) than it did to analyzing the merits of the only claim it chose to address, namely the exclusion order requiring evacuation to assembly centers (968 words). While conceding that mandatory evacuation was for the purpose of forcibly interning Japanese-Americans, the Court insisted “we cannot say as a matter of fact or law, that [Korematsu’s] presence in that [assembly] center would have resulted in his detention in a relocation center.”

Having averted its attention away from race-based internment, the Supreme Court dispensed with the challenge to the evacuation order by invoking Hirabayashi. Though that case involved the far less onerous requirement an overnight curfew, the Court treated it as dispositive of Korematsu’s challenge to the constitutionality of orders requiring tens of thousands of American citizens to abandon their homes, communities, and livelihoods: “In light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did.” Three Justices strongly dissented sounding the alarm that the Court had gone far beyond Hirabayashi, but it was too late.

Finally, there is Ex Parte Endo,[4] the case that actually addressed detention of an American citizen of Japanese descent. Born and raised in the United States, 23-year-old Mitsuye Endo was forcibly evacuated from Sacramento and detained at an internment camp in June 1942. The government conceded she was “a loyal and law-abiding citizen” but insisted it was free to detain her. In a decision issued the same day as Korematsu, the Supreme Court ordered Endo’s release.

As dramatic and surprising as this outcome might seem given Hirabayashi and Korematsu, Endo did not herald a willingness by the Supreme Court to confront the constitutionality of race-based detention. To the contrary, as in Korematsu, the Court refused to consider the constitutional issue, resorting instead to a tortured analysis to interpret Executive Order 9066 and the subsequent congressional enactment as not authorizing detention. More importantly still, by the time the Supreme Court issued Endo, the military itself had concluded detention was no longer needed and had publicly announced the day before the ruling that it would release Japanese-Americans.[5] In ruling as it did in Endo, the Supreme Court did not halt internment but rather was operating in the comfortable confines of a course the military already had charted.

Trump and Internment

Flash forward nearly 75 years to five weeks ago, when the Supreme Court in Trump v. Hawaii upheld the ban on citizens of a group of predominantly Muslim countries from entering the United States, a ban instituted in conjunction with a long series of public statements by candidate and then President Trump declaring his intention to bar Muslims from this country. In sustaining the ban, the Court emphasized the extreme deference due the President with respect to the admission of foreign nationals to the United States; held that given such deference exclusion orders were subject only to the most minimal “rational basis” scrutiny if neutral on their face; and held that, notwithstanding Trump’s numerous public statements, the proclamation announcing the ban suggested an “independent justification” for the ban.

In response to the charge the Court was repeating the grave errors of the Korematsu era, Chief Justice Roberts wrote for the five-Justice majority:

Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission. . . .           

The Court’s effort to distance itself from Korematsu suffers from two major flaws. First, while excluding people from entering the United States is a far cry from “concentration camps,” it is important to recall that the Supreme Court’s internment rulings started with the relatively benign issue of an overnight curfew, and it was the acceptance of that measure in Hirabayashi that the Court used to foreclose the more draconian measures at issue in Korematsu. One can readily envision the Court’s analysis in accepting the travel ban in Trump next being used to foreclose challenges to far more restrictive but “facially neutral” measures emanating Trump’s open animus towards Muslims or other groups.

Even more alarming is the Court’s insistence on characterizing the Muslim travel ban as involving a “facially neutral” policy, in supposed contrast to the race-based Japanese internment regime. Yet, in both instances the Supreme Court ignored an ugly reality staring it in the face. In the internment cases, the Court chose to disregard the reality that tens of thousands of American citizens of Japanese descent were confined to detention camps at the very time it refused to address the constitutionality of detention in those cases. And in Trump the Court chose to disregard the reality that the Muslim travel ban was the product of Trump’s hostility to Muslims, as evidenced by his many declarations that he intended to single out Muslims for discriminatory treatment and even a statement by one of his close advisors that Trump had directed him to craft a Muslim ban that would appear on the surface to be neutral so as to survive judicial scrutiny. To turn away from these realities is a dangerous abdication of the judiciary’s critical role in our constitutional scheme.

The disturbing parallels between the Supreme Court’s handling of the Japanese internment and of the Muslim travel ban casts into a very different light the Court’s claim to have renounced Korematsu:

            The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—has no place in law under the Constitution.

Given that Trump repeats the grievous errors of Hirabayashi, Endo, and Korematsu, one fairly wonders about the sincerity of the Trump opinion’s claimed renunciation of Korematsu. Regardless, one can only hope it will not take another 75 years for the Supreme Court to conclude that Trump v. Hawaii “was gravely wrong the day it was decided” and “has no place in law under the Constitution.”