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SUPREME COURT OF THE UNITED STATES
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No. 870
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1943.US.40783 <http://www.versuslaw.com>; 320 U.S. 81, 63 S.
Ct. 1375, 87 L. Ed. 1774
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decided: June 21, 1943.
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HIRABAYASHI
v.
UNITED STATES
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CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS 1290*4 FOR THE NINTH
CIRCUIT.
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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.
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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.
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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.
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Stone, Roberts, Black, Reed, Frankfurter, Douglas, Murphy, Jackson,
Rutledge
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Author: Stone
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MR. CHIEF JUSTICE STONE delivered the opinion of the
Court.
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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 to persons in a
military area prescribed by him as such, all as authorized by an Executive
Order of the President.
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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.
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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 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.
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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.
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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 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.
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On appeal the Court of Appeals for the Ninth Circuit certified to us
questions of law upon which it desired instructions 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.
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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.
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On December 8, 1941, one day after the bombing of Pearl Harbor by a
Japanese air force, Congress declared war against 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 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."
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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 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 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.
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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.
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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.
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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 of War, contrary to the restrictions
applicable to any such area or zone or contrary 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.
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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 the Act of Congress of March 21, 1942.
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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, 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.
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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.
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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., d
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.
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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 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.
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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 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.
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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 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.
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Executive Order No. 9066, promulgated in time of war for the declared
purpose of prosecuting the war by protecting national defense resources
from sabotage and espionage, 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
tried
and convicted in the civil courts and has been subjected to penalties
prescribed by Congress for the acts committed.
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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.
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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, 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 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.
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Although the results of the attack on Pearl Harbor were not fully
disclosed until much later, it was known that the damage 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.
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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, 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.
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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.*fn1 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 been particularly effective in
the surprise attack on Pearl Harbor.*fn2 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.*fn3
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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.*fn4 In addition, large numbers of children of
Japanese parentage 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.*fn5 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.*fn6
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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.*fn7 No official
census of those whom Japan regards as having thus retained Japanese
citizenship is available, but there is ground for the belief that the
number is large.*fn8
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| [40] |
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.*fn9
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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, 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.
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| [42] |
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. 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.
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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. But
appellant insists that the exercise of the power is inappropriate 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.
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| [44] |
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 affairs."
McCulloch v. Maryland, 4 Wheat. 316, 407, 415. 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.
|
| [45] |
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.
|
| [46] |
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 ancestry. Nor can we
deny that Congress, and the military authorities acting with its 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.
|
| [47] |
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.
|
| [48] |
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 Order,
and to the extent that the findings in the Proclamations establish that
such was their purpose, both have been approved by Congress.
|
| [49] |
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 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.
|
| [50] |
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 seen, those
facts, and the inferences which could be rationally drawn from them,
support the judgment of the military commander, that the
danger of espionage and sabotage to our military resources was imminent,
and that the curfew order was an appropriate measure to meet
it.
|
| [51] |
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.
|
| [52] |
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 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.
|
| [53] |
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.
|
| [54] |
Affirmed.
|
| [55] |
Disposition
|
| [56] |
Affirmed.
|
| [57] |
MR. JUSTICE DOUGLAS, concurring:
|
| [58] |
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.
|
| [59] |
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 and
during an invasion.*fn1 If the military 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.
|
| [60] |
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 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.
|
| [61] |
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.
|
| [62] |
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 these people on a group basis. Petitioner therefore
was not justified in disobeying the orders.
|
| [63] |
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 under
our constitutional system. Detention for reasonable cause is one thing.
Detention on account of ancestry is another.
|
| [64] |
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.
|
| [65] |
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.*fn2 Whether in the present situation that
remedy would be available is one 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.
|
| [66] |
MR. JUSTICE MURPHY, concurring:
|
| [67] |
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 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
and property which would not in all cases be permissible in normal
times.*fn1a 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.
|
| [68] |
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.
|
| [69] |
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 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.
|
| [70] |
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, 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.*fn2a 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.
|
| [71] |
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 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.
|
| [72] |
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 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.
|
| [73] |
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 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.
|
| [74] |
MR. JUSTICE RUTLEDGE, concurring:
|
| [75] |
I concur in the Court's opinion, except for the suggestion, if that is
intended (as 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.
|
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|
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Opinion Footnotes
|
| |
|
| [76] |
*fn1 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).
|
| [77] |
*fn2 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.
|
| [78] |
*fn3 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.
|
| [79] |
*fn4 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.
|
| [80] |
*fn5 Hearings before the Select Committee
Investigating National Defense Migration, House of Representatives, 77th
Cong., 2d Sess., pp. 11702, 11393-94, 11348.
|
| [81] |
*fn6 H. R. Rep. No. 1911, 77th Cong., 2d Sess.,
p. 16.
|
| [82] |
*fn7 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.
|
| [83] |
*fn8 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.
|
| [84] |
*fn9 H. R. Rep. No. 1911, 77th Cong., 2d Sess.,
p. 17.
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Concurrence Footnotes
|
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|
| [85] |
*fn1 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."
|
| [86] |
*fn2 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.
1a 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. 2a 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.
|