Article II, Section 2, Clause 1:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

On February 19, 1942, President Roosevelt issued an Executive Order, “by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy,” providing, as a safeguard against subversion and sabotage, power for his military commanders to designate areas from which “any person” could be excluded or removed and to set up facilities for such persons elsewhere.1 Pursuant to this order, approximately 112,000 residents of the Western states, all of Japanese descent and more than two out of every three of whom were natural-born citizens, were removed from their homes and shipped to temporary camps and later into “relocation centers” in several states.2

It was apparently the Administration’s original intention to rely on the general principle of military necessity and the power of the Commander in Chief in wartime as authority for the relocations.3 Before any action was taken under the order, Congress ratified and adopted it by the Act of March 21, 1942,4 by which it was made a misdemeanor to knowingly enter, remain in, or leave prescribed military areas contrary to the orders of the Secretary of War or of the commanding officer of the area. The cases which subsequently arose in consequence of the order were decided under the order plus the Act. The question at issue, said Chief Justice Harlan Stone for the Court, “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 . . . [power] to impose the curfew restriction here complained of.” 5 This question was answered in the affirmative, as was the similar question later raised by an exclusion order.6 These two opinions, however, skirted the question of internment in relocation centers. On that question, the Court granted habeas relief to an “admittedly loyal citizen” of Japanese descent on the basis that internment was unsupported by the Executive Order or by statute.7 Ultimately, the Court abrogated the Korematsu decision, holding that “[t]he 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.” 8

Footnotes

1

Exec. Order No. 9066, 7 Fed. Reg. 1407 (1942).

2

War Relocation Authority, The Evacuated People: A Quantitative Description 67 (1946).

3

Exec. Order 9066 stated that “the successful prosecution of the war requires every possible protection against espionage and against sabotage” and cited as authority that vested “in the President of the United States, and Commander in Chief of the Army and Navy,” but did not claim statutory authority. Exec. Order No. 9066, 7 Fed. Reg. 1407 (1942).

4

56 Stat. 173 (1942).

5

Hirabayashi v. United States, 320 U.S. 81, 91–92 (1943).

6

Korematsu v. United States, 323 U.S. 214 (1944). Long afterward, in 1984, a federal court granted a writ of coram nobis and overturned Korematsu’s conviction, Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984), and in 1986, a federal court vacated Hirabayashi’s conviction for failing to register for evacuation but let stand the conviction for curfew violations. Hirabayashi v. United States, 627 F. Supp. 1445 (W.D. Wash. 1986). Other cases were pending, but Congress then implemented the recommendations of the Commission on Wartime Relocation and Internment of Civilians by acknowledging “the fundamental injustice of the evacuation, relocation and internment,” and apologizing on behalf of the people of the United States. Pub. L. 100–383, 102 Stat. 903 (1988) (codified as amended at 50 U.S.C. §§ 4201–4251). Reparations were approved, and each living survivor of the internment was to be compensated in an amount roughly approximating $20,000.

7

Ex parte Endo, 323 U.S. 283, 302 (1944).

8

Trump v. Hawaii, No. 17–965, slip op. at 38 (U.S. June 26, 2018).