Hirabayashi v. United States

Procedural Background 

Gordon Hirabayashi was a 24 year-old senior at the University of Washington when he decided to challenge the curfew and evacuation orders.  Since Hirabayashi admitted to violating both the curfew and order to evacuate, the jury quickly convicted him of a federal misdemeanor charge (violation of Public Law 503, which made it a crime to violate any duly executed military order).  

On appeal, the Ninth Circuit en banc heard Hirabayshi's appeal as well as that of Minoru Yasui and Fred Korematsu on Feb. 19, 1943.   Instead of ruling on these cases, the court certified the controlling questions of law to the Supreme Court.  The Supreme Court asked for the entire case to be transmitted so that it could decide the appeal itself.  

By the time the Supreme Court heard oral argument in May 1943, the internment of Japanese Americans had already taken place.   Yet, in this first case to be decided, the Court decided to address the narrowest question possible.   In particular, it executed a segmentation strategy that separated the easier "curfew" question from the harder forced "evacuation" question.  [See Jerry Kang, Denying Prejudice: Internment, Redress, and Denial, 51 UCLA L. REV. 933, 944 (2004) (discussing segmentation).]  Although briefed by none of the parties, Chief Justice Stone wrote:

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 [ the exclusion violation] if we find that the conviction on the second count, for violation of the curfew order, must be sustained. 320 U.S. at 85.

Immediately, the question presented became much simpler:  In a time of national emergency, could the military institute a curfew that applied to all enemy aliens as well as all Japanese (both aliens and citizens).  

The Court addressed two issues. First, did Congress and the President have the power to impose the curfew restriction in light of the circumstances they faced?  Second, did the curfew order unconstitutionally discriminate between citizens of Japanese ancestry and those of other ancestries in violation of the Fifth Amendment?

Affirmative Power

The federal government is a government of limited powers.  The same goes for its institutions, such as the military.  So where did the military get the power to issue a curfew that would apply to Gordon Hirabayashi, who was an American citizen?

According to the Supreme Court, the military’s power to issue the curfew order came from the President and Congress.  On Feb. 19, 1942, two months after the bombing of Pearl Harbor, the President promulgated Executive Order No. 9066, authorizing and directing the military to designate military areas from which any or all people may be excluded, and allowing the military to regulate the movement of people in those areas.  

Congress then provided the means of enforcing the order by passing a federal statute, Public Law 503, criminalizing violations of military regulations in those areas, including the curfew and exclusion orders.   The court found that each of these acts were constitutional exercises of the war power given to the Executive and Congress by Articles I and II of the Constitution.  320 U.S. at 102.

The court found it to be reasonable to put a curfew on persons of Japanese descent for several reasons. The curfew was necessary to prevent espionage and sabotage by the Japanese, whose loyalty was in question.  Id. at 96.  The court found that many Japanese Americans sent their children to Japanese schools, which the court described as places where the Japanese spread propaganda.  Id. at 104.  The court also found that most Japanese had dual citizenship with Japan, even though the Japanese could not get out of the citizenship rules of Japan.  Id. at 97.  

The Court further found that the social, economic, and political conditions intensified the solidarity of the Japanese and prevented their assimilation into the white population.  Id. at 96.  In a footnote, the Court lists examples, including a judicial decision preventing the Japanese from naturalizing, land laws preventing them from owning land, and employment laws preventing them from securing employment.  Id. at 96 n.4.  The JACL pointed out the catch-22 in this argument, saying that by this line of reasoning, "[T]he Nazi treatment of the Jews is vindicated, for the Jews of Germany had suffered civil and social disabilities, and therefore, by the sadistic turn of logic, should have been ripe for treason to the Reich precisely as Hitler declared."  See Jerry Kang, The Story of Hirabayashi v. United States, in Race Law Stories 322-23 (Rachel F. moran & Devon W. Carbado, eds. 2008).

But in the end, the Court wasn't perturbed.  The military had the affirmative power to issue the curfew order. 

Negative Limitation

The second question dealt with whether the curfew order discriminated against the Japanese in violation of the Fifth Amendment's Due Process Clause.  The Court started its analysis by saying, "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." Id. at 100 (citing Yick Wo v. Hopkins, 118 U.S. 356 (1886)).

But, in its application, the Court allowed what might now be called racial profiling:  

"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."  Id. at 101.

"We cannot close our eyes to the fact, demonstrated by experience, that in time of war these citizens who have ethnic affiliations with an invading enemy may be a greater source of danger than those of a different ancestry."  Id.  

Even though the Court cites to experience, there was almost no evidentiary record or other factual basis for this assertion.  The Court instead defers to the judgment of the military and Congress that there were disloyal Japanese.  In the end, the government's actions were common sensical and justified. After all, it was simply a curfew.  

Connection to Other Cases

The Yasui opinion, issued on the same day as Hirabayashi, presented the same curfew question and was decided on the basis of the same reasoning.   Hirabayashi would also act as favorable precedent for approving harsher limitations, such as evacuation, a year later and a half later in the Korematsu case.

For a CRT Analysis of the case, see Jerry Kang's "Denying Prejudice" piece.  Jerry Kang, Denying Prejudice, supra.