Toyosaburo Korematsu v. United States
1943 U.S. App. LEXIS 2166, 140 F.2d 289 (1943)
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Rule of Law:
The war power of the federal government grants the executive and legislative branches broad discretion to enact measures necessary to successfully prosecute a war, even if those measures infringe upon the constitutional rights of citizens, and courts will generally defer to their judgment regarding the necessity of such actions.
Facts:
- Fred Korematsu was a native-born citizen of the United States of Japanese ancestry.
- Following the attack on Pearl Harbor and the U.S. entry into World War II, Lieutenant General J. L. DeWitt was the military commander for the Western Defense Command.
- On May 3, 1942, General DeWitt issued Civilian Exclusion Order No. 34.
- The order declared that all persons of Japanese ancestry were to be excluded from the city of San Leandro, California, which was part of Military Area No. 1.
- The deadline for exclusion was 12:00 noon on May 9, 1942.
- Korematsu knowingly remained in San Leandro after the deadline, in violation of the military order.
Procedural Posture:
- Fred Korematsu was convicted in a federal trial court for violating Civilian Exclusion Order No. 34.
- The trial court sentenced Korematsu to five years of probation.
- Korematsu (appellant) appealed his conviction to the U.S. Circuit Court of Appeals for the Ninth Circuit, arguing the order was unconstitutional.
- The U.S. government (appellee) moved to dismiss the appeal, claiming a probationary order was not a final, appealable judgment.
- The Ninth Circuit certified the jurisdictional question to the U.S. Supreme Court.
- The Supreme Court answered that the order was appealable, and the case returned to the Ninth Circuit for a decision on the merits of the appeal.
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Issue:
Does a military order, issued during wartime under the authority of Congress and the President, that excludes a United States citizen of Japanese ancestry from a designated military area violate the Constitution?
Opinions:
Majority - Wilbur, J.
No. A military order excluding a U.S. citizen of Japanese ancestry from a designated military area does not violate the Constitution. Relying on the Supreme Court's recent decisions in Hirabayashi v. United States and Yasui v. United States, which upheld curfew restrictions on the same group, the court finds the governing principle to be that the government's war power allows it to do what is necessary for the successful prosecution of a war. The exercise of these powers may temporarily infringe on the rights and liberties of citizens. The court determines that the principle established in the curfew cases so clearly sustains the validity of the evacuation order that further analysis is unnecessary, as the constitutional questions raised by Korematsu were already decided contrary to his contentions in those cases.
Concurring-in-part-and-dissenting-in-part - Denman, J.
No. While the military order is constitutional, the majority's reasoning is flawed and fails to address the gravity of Korematsu's claims. This order was not merely for 'evacuation' but was the first step in a program of mass imprisonment without trial. While Ex parte Milligan would normally forbid such military action against civilians while courts are open, the modern threat of air invasion, which could destroy the civil courts themselves, presents a new kind of necessity. This necessity, coupled with the difficulty of rapidly distinguishing loyal from potentially disloyal individuals within the Japanese-American community, brings the order within the 'allowable limits of military discretion' as articulated in Sterling v. Constantin. Though the mass deportation and imprisonment are a 'gross cruelty' and a borderline case, they do not exceed the discretionary powers of a military commander facing the wartime danger of espionage and sabotage.
Concurrence - Stephens, J.
No. The military order is a constitutional exercise of the war power, and it is not the role of the judiciary to review the wisdom of such actions. The Constitution commits the exercise of war power to the Executive and Congress, giving them wide discretion to determine the nature of a threat and the means for resisting it. For a court to require a trial of fact to determine the military necessity of a strategic order would dangerously weaken the nation's ability to wage war. The situation is not analogous to a local disturbance but involves national survival against a foreign enemy. Therefore, the court must defer to the judgment of the military commander acting under the authority of the President and Congress.
Dissenting - Denman, J.
This opinion dissents from a separate procedural action in the related Hirabayashi case but was attached by the author to his concurrence in Korematsu. It argues against certifying questions to the Supreme Court without deciding them first, thereby denying the appellants the benefit of the circuit court's specific regional knowledge. The opinion strongly condemns the exclusion and internment program, calling it a 'discriminating cruelty' and comparing it to the deportation of the Dutch by the Germans and the imprisonment of Jews. It criticizes the government for acting against 70,000 citizens when not a single one had been charged with espionage or sabotage, and it details the social and legal discrimination that Japanese Americans faced, arguing these facts were essential context for the Supreme Court.
Analysis:
This Ninth Circuit decision exemplifies the extreme judicial deference afforded to military and executive action during wartime. By relying heavily on the Supreme Court's recent curfew decision in Hirabayashi, the majority extended the principle of military necessity to justify the far more severe measure of exclusion, which was a prelude to internment. The case solidifies a precedent where national security claims, particularly during a declared war, can override fundamental constitutional protections for a specific class of citizens based on ancestry. The sharp divisions in the concurrences and dissent highlight the deep judicial struggle with the court's role in scrutinizing military power and the tension between individual liberty and national security.
