How did the US system of checks and balances allow FDR to put Japanese-Americans into internment camps?

by JimJones4Ever

Could it happen again?

CrookedShepherd

In short, the cynical answer is yes.

The camps and subsequent legal case, US v. Korematsu, exemplify the reality of American political structure, which is that while dividing power between an executive, legislature, and judiciary perhaps creates the possibility of at least one of these branches protecting vulnerable minorities the reality is that judges, presidents, and congressman are all subject to similar political pressures and prejudices.

This is going to cross over into more political science and law than history, but there's an enormous body of evidence which indicates that judges are influenced by how the public views high profile issues (http://onlinelibrary.wiley.com/wol1/doi/10.1111/j.1468-2508.2004.00288.x/full) (I'll try to find another source without a paywall).

In the case of the Japanese internment camps, the political actions which ultimately led to internment began with the Alien Enemies Act of 1798 which delegated broad powers to the executive in regards to the treatment of aliens, especially aliens of a hostile power. There's a lot history regarding the Alien and sedition acts, and their effects on early american politics, which is important, but not particularly relevant to the present discussion. The short version is these bills originally were passed as a means for federalists (an early american pseudo-party led by WAshington and later Adams) to suppress political speech of their political enemies the democratic-Republicans (led by Jefferson), their plan back-fired and they lost political power leading to most but not all of those laws being repealed. However the Alien enemies Act remained, and was updated in 1918 as part of WWI. Although EO 9066 shaped the contours of the legal basis for the Japanese internment camps, it's important to remember that the law which the EO enforced was not new, or unique necessarily to the fear and hysteria after Pearl Harbor.

After Pearl Harbor, the President issued E.O. 9066 which established a curfew for people of Japanese citizenship or ancestry in order to prevent espionage udner the Alien Enemies Act. This curfew was challenged in an earlier case called Hirabyashi v. US where the Court established that:

. . . 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.

Within the structure of the US system of separation of powers, the authority of Congress to declare war(Art. 1, sec. 2, Cl. 8) and the President's control over that conflict (Art. 2, sec. 2 Cl. 1) has led to considerable deference by the judicial branch with regard to the determination of these issues.

The basic argument of Hirabyashi is that an unknown number of people of Japanese Ancestry pose an immediate threat and it would be too burdensome to individually ascertain whom is an actual threat one-by-one, so a curfew (later a ban, later camps) was the least bad way to prevent catastrophe.

After Pearl Harbor, the plurality of Americans (48% to 36%) supported making the ban on Western habitation of the Japanese permanent (source), the amount of animus and fear directed towards this group was enormous, even from supreme court justices.

I bring up Hirabyashi, because procedurally the court in Korematsu did not address whether the "detention centers" (read: internment camps) were legal, but whether the ban on Japanese -Americans in key areas of the West coast was illegal. It was this latter provision of the EO which Korematsu violated, and subsequently challenged. The Court, with Black writing for the majority rested their analysis, largely upon the prior case Hirabyashi. I should also mention, as Judge Jackson addresses in his scathing dissent, that the EO did not explicitly require internment, but instead made it illegal for Japanese-Americans to remain on the west-coast, and illegal for them to move to other areas, leaving their only option to submit to military-custody. Despite this being the ultimate outcome, the court did not address this issue.

To sum up, the camps were created under legal authority which had been designated to the President for almost a century by a law passed by a Congress that included many founding fathers. The executive order given by the president was reviewed by the Supreme Court, which (at least indirectly) confirmed their constitutionality by a vote of 6-3.

While public attitudes may have changed regarding the camps, Korematsu has never been directly overturned, and at least theoretically is still binding law.