Civilian Exclusion Order No. 34 directed that after May 9, 1942, all persons of Japanese ancestry were excluded from the West Coast.
D was arrested for remaining in CA after the order was given. No question was raised as to D's loyalty to the U.S.
District Court found D guilty, order constitutional.
SCOTUS affirmed, D guilty, order constitutional.
What level of scrutiny should be used in looking at laws that facially discriminate against a racial/ethnic group?
Is Civilian Exclusion Order No. 34 unconstitutional under this level of scrutiny?
Laws that facially discriminate against a racial/ethnic group must be subjected to strict scrutiny; the Gov't must prove that the law is necessary to achieve a compelling government purpose.
The Civilian Exclusion Order is facially discriminatory but is not unconstitutional since it is necessary to achieve a compelling government purpose.
Not all facially discriminatory laws are unconstitutional; pressing public necessity may sometimes justify the existence of such restrictions. Racial antagonism never can.
Court upheld a curfew for Japanese Americans in Hirabayashi; this case is not dissimilar from that case.
Exclusion from a threatened area, no less than a curfew, has a definite and close relationship to the prevention of espionage and sabotage.
Like curfew, exclusion was deemed necessary because of the presence of an unascertained number of disloyal members of the group.
Because it is impossible to separate out the loyal from the disloyal, the order may apply to the entire group.
After the curfew case, it was found that ~5k Japanese Americans refused to swear unqualified allegiance to the U.S. and to renounce allegiance to the Japanese Emperor. Some even requested repatriation to Japan.
Citizenship has its responsibilities as well as its privileges, and in time of the war the burden is always heavier.
When under conditions of modern warfare when our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.
D was not excluded because of hostility to him or his race; it was a security measure.
We cannot, even using hindsight, now say that at the time these actions were unjustified.
This is clearly racism and beyond constitutional power.
It is essential to protect our country in times of war; however, it is essential that there be definite limits to military discretion, especially when martial law has not been declared.
Individuals must not have their rights taken away on a plea of military necessity that has neither substance nor support.
The judicial test is whether the deprivation of rights is reasonably related to a public danger that is so immediate, imminent, and impending as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger.
This measure does not pass this test.
This order must necessarily rely for its reasonableness upon the assumption that all persons of Japanese descent may have a dangerous tendency to commit sabotage and espionage. This is a ridiculous premise.
No reliable evidence is cited to show that such individuals were generally disloyal.
The main reasons relied upon by those responsible for the evacuation, therefore, do not prove a reasonable relation between the group characteristics and the dangers of invasion, sabotage, and espionage.
There is a slippery slope issue here as well.
There is also no evidence that the FBI and other agencies did not have the espionage and sabotage issues under control.
There is no evidence that the military could not use screening like they did for Italians and Germans in America.
The only way that D could have not committed a crime was to turn himself in to the military.
The difference between innocence and guilt would result not from anything he did but from the mere fact that he was born of a different racial stock.