Wrong Again: The Supreme Court Gives Undue Judicial Deference to National Security in Korematsu and Trump v. Hawaii
BY HARVEY GEE
This piece was published in the 31st print volume of the Asian American Policy Review.
This article compares the wartime Supreme Court’s complete deferral to the government’s justification for the detention of Japanese Americans to argue that the modern Supreme Court repeated a similar tragic mistake almost seventy-five years later in Trump v. Hawaii.
Without question, the Japanese American internment experience is relevant to the post-9/11 war on terror and President Donald J. Trump’s Muslim travel ban.[i], [ii], [iii] As history revealed, the curfew and exclusion orders enforced against the Japanese were based on racial prejudice, unsupported by evidence of any real Japanese threat.[iv] These orders were egregious examples of how laws can be used as an instrument of racism and how racist laws can be defended by claims that such laws are not race-based. Enabled by President Franklin D. Roosevelt’s executive orders, the US government considered approximately 120,000 individuals of Japanese ancestry to be disloyal.[v] About 80,000 of these people were US citizens and held indefinitely, in the absence of a single case of espionage on the West Coast during World War II or any declaration of martial law. Like steer, they were sent by train to relocation centers and camps located in the most undesirable and remote regions in the country—the deserts and swamplands of California, Idaho, Utah, Arizona, Wyoming, Colorado, and Arkansas.[vi]
This article compares the wartime Supreme Court’s complete deferral to the government’s justification for the detention of Japanese Americans to argue that the modern Supreme Court repeated a similar tragic mistake almost seventy-five years later in Trump v. Hawaii.[vii] Hawaii upheld the Trump administration’s Muslim travel ban in the face of the President’s direct and repeated statements of anti-Muslim animus that began on the campaign trail and continued throughout his presidency. As soon as the travel ban was proposed, many lawyers and activists compared the Muslim ban to the internment of Japanese Americans during World War II because both acts targeted minority groups under the auspices of national security.[viii] In both instances, the US government used protected characteristics as a proxy for danger, and the Supreme Court was reluctant to question the government’s judgment, to the detriment of our nation and American ideals.[ix] During the 2020 presidential campaign, President-Elect Joe Biden referred to the ban as the start of “nearly four years of constant pressure, insults, and attacks” by Trump against racial minorities.[x] As a remedial measure, in his first day in office, President-Elect Biden ended Trump’s travel ban with an executive order of his own.[xi]
I. The Relationship Between Japanese American Internment During World War II and the War on Terrorism After 9/11
Race was the sole consideration behind internment because only individuals of Japanese descent, including American citizens who held no allegiance to Japan or its culture, were interned.[xii] To the US government, both Japanese immigrants and Japanese Americans were foreigners who could not be trusted. The internment was consistent with a long legacy of racism and historical domination over Asian immigrants in the US In a social context, the government utilized and facilitated the racial stereotype of Japanese Americans as a subordinate racial and ethnic group that could not assimilate.[xiii] And in a political context, mainstream American society viewed Japanese immigrants and Japanese Americans as economic threats to whites at a time when FDR was seeking reelection.[xiv] In upholding the exclusion order in Korematsu v. United States, the Supreme Court announced that it would not reject the judgment of the military and Congress that disloyal citizens were amongst the Japanese population and that it was impossible for military authorities to immediately segregate disloyal from loyal Japanese Americans.[xv]
Decades later, in the immediate weeks after the terrorist attacks on the World Trade Center and Pentagon on 11 September 2001, the US government’s actions evoked echoes of Japanese internment.[xvi] Just as the US government viewed Japanese Americans with suspicion after Pearl Harbor, policymakers and law enforcement racially and religiously profiled Muslims and Arab Americans after September 11.[xvii] In a manner similar to the process leading to Japanese American internment, the legislative branch aligned with the executive branch in a collaborative effort to sacrifice fundamental liberties in the name of national security.[xviii]
Within the government-manufactured framework of the war on terrorism, an unprecedented expansion of executive power began.[xix] On 13 November 2001, President Bush issued a military order directing the Secretary of Defense to create military tribunals and establish detention authority.[xx] He also convinced Congress that the denial of habeas corpus rights to alleged enemy combatants housed at Guantanamo Bay was appropriate and lawful.[xxi]
In my prior writings, I analyzed the internment experience and Guantanamo Bay litigation to demonstrate how the executive branch has attempted to strategically skirt the Constitution by crafting national security policies to satisfy their agenda during the war on terror.[xxii] I also examined how politics and racial prejudice can conspire to trample the civil liberties of an entire racial group during a time of war by using fabricated claims of military necessity.[xxiii] Aware that Korematsu can be used as a tool by the government to prosecute terrorists, Berkeley Law Dean Erwin Chemerinsky cautions that Guantanamo Bay cases repeat the mistake of Korematsu on a smaller scale, since detainees are held indefinitely without meaningful due process, and that Korematsu is a reminder of the role of race in judicial decisions.[xxiv]
II. Racism and the Law: Analyzing the Supreme Court’s Failure to Uphold Civil Liberties During a Time of War in Hirabayashi, Yasui, Korematsu, and Endo
President Trump was ignorant of the important lessons offered by Korematsu and Japanese internment. He likened the Muslim travel ban to the proclamation issued by FDR in 1942 authorizing the US government’s apprehension and detention of Japanese, German, and Italian immigrants.[xxv] Trump’s lack of understanding of Japanese internment also compelled the Japanese Americans Citizens League to lambast members of Trump’s administration who were in Arkansas to scout potential locations to house up to 20,000 migrant children who were separated from their families while crossing the US–Mexico border under the Trump administration’s “zero-tolerance” policy.[xxvi] These officers considered a location two miles away from the former site of a World War II-era Japanese internment camp as the location for a detention center for Mexican children. Further, the Trump administration considered a plan to send select ISIS fighters to a US detention facility in Guantanamo Bay to join the remaining detainees. As witnessed during the Bush and Obama administrations, the Guantanamo Bay detainees, like the many Japanese American internees in the 1940s, wait indefinitely without due process of law.[xxvii]
In order to understand the impact of internment cases to Hawaii, a brief review of the four internment cases that reached the Supreme Court is necessary. There were two curfew cases. First was Hirabayashi v. United States, which concerned Gordon Hirabayashi, who was born and raised in Seattle, Washington and had never been to Japan. Hirabayashi believed that the curfew was discriminatory and unjust. Based on this belief, and intent on challenging the exclusion orders, he went to Seattle FBI headquarters to submit his written proclamation, “Why I Refuse to Register for Evacuation.”[xxviii] Hirabayashi was convicted of violating Public Proclamation No. 3, which imposed a curfew on all enemy aliens and citizens of Japanese descent and required Japanese Americans to be home between 8:00 p.m. and 6:00 a.m.[xxix] The government urged the Supreme Court to decline to address the issue of constitutionality by insisting that only the exclusion order was before the Court.[xxx] The government alternatively argued that if the Court was inclined to determine the confinement’s constitutionality, the curfew was within the war powers of the President and Congress.
In writing for a unanimous Court in Hirabayashi v. United States, Chief Justice Harlan F. Stone relied on the government’s war powers as the foundation on which to uphold the race-based order and construed the order as a mild, temporary deprivation that was constitutionally permissible in this instance.[xxxi] Limiting his analysis to the text of the curfew order and ignoring the racial reality of the internment, Justice Stone offered a rational basis for the order.[xxxii] He perceived that there was an immediate threat of another attack on the west coast based on evidence that some Japanese Americans were disloyal. However, the Court skirted the real issue of the case: Can the government intern an entire racial group? The Court instead reasoned that the military had a “rational basis” for imposing the curfew order, which was “a much lesser intrusion on liberty” than the exclusion of all Japanese Americans—allowing the Court to avoid the difficult issues of evacuation and internment.[xxxiii] The Court simply upheld Hirabayashi’s conviction for violating the curfew.
In the second case, Yasui v. United States, Minoru Yasui walked the streets of Portland in defiance of the curfew order.[xxxiv] He turned himself in to a police station. He waived his right to a jury trial and was found guilty after a bench trial. Decided the same day as Hirabayashi, Yasui’s conviction was sustained for the same reasons. The Court again avoided the legality of the mass internment of an entire racial group by characterizing the case as a “curfew” case. Chief Justice Stone wrote a brisk three-page unanimous opinion holding that the application of curfews against citizens is constitutional.
Up to this point, military reports were the Court’s primary source for finding military necessity. Lt. General John L. DeWitt’s Final Report on the removal of Japanese Americans was not made public until 19 January 1944—after the Hirabayashi and Yasui opinions and eleven months before the Court relied on it in Korematsu. DeWitt’s Final Report, which contained racial stereotypes and assumptions, was duly discredited as being based on falsehoods forty years later in Korematsu’s coram nobis proceedings. This report presented “facts” purporting concerns about espionage and sabotage on the West Coast such as: Japanese Americans were concentrated on the West Coast near military installations; Japanese Americans were not to be trusted because hundreds of Japanese organizations advanced Japanese war efforts before the bombing of Pearl Harbor; Japanese born in the US had sympathy for Japan because thousands of them went to Japan for education where pro-Japanese ceremonies were held; Japanese Americans, as a racial group, were tied to the enemy by race, culture, and religion; Japanese American loyalties remain unknown; and Japanese Americans were involved in illegal signaling along the West Coast.[xxxv]
Eventually the rulings in the two exclusion cases – Korematsu and Endo – came down after the presidential election and the Roosevelt Administration’s announcement of the camps’ closures. On 18 December 1944, the Court in Korematsu restricted its holding to the question of the evacuation alone, again avoiding the issue of the internment’s constitutionality.[xxxvi] Korematsu was the third of four sons born in the US[xxxvii] As a San Francisco Bay Area native, Korematsu was fully immersed in American mainstream culture. He worked in a shipyard until he was eventually terminated because of his race. Korematsu was walking down the street when he was apprehended by the San Leandro police. In upholding the exclusion order, Justice Hugo Black, writing for the majority, assured that the case was not about racial prejudice, but was instead about an exclusion order. “Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire . . .”[xxxviii]
The majority opinion was met with backlash in the form of fierce dissents authored by Justices Frank Murphy and Owen J. Roberts, who vigorously and effectively countered the majority’s reasoning.[xxxix] To begin, Justice Murphy claimed that the entire internment was a “legalization of racism.”[xl] In his view, the case was motivated by racial prejudice that facilitated an erroneous, blanket racial assumption—all Japanese individuals born inside or outside of the US were disloyal.[xli] Justice Murphy asserted that the justification for the exclusion was based on “questionable racial and sociological grounds” of expert military judgment, supplemented by “an unwarranted use of circumstantial evidence.”[xlii] Justice Murphy makes these allegations again when he compares the difference in treatment between Japanese Americans who were not afforded hearings and Germans and Italians to whom the government provided investigation and loyalty hearings. He further explained that because months passed between orders, there was no imminent or urgent danger to public safety, thus there was no military necessity.
Equally damning was Justice Roberts’ dissent, which centered on the treatment of Japanese Americans, explaining that to focus solely on the validity of the exclusion orders “is to shut our eyes to reality.”[xliii] He criticized the majority for separating the race issue from the exclusion order, which he believed to be indivisible. Because incarceration was ancestry-based and in clear violation of constitutional rights, Justice Roberts insisted that the case was about “convicting a citizen as punishment for not submitting to imprisonment in a concentration camp . . . without evidence or inquiry concerning his loyalty and good disposition towards the United States.”[xliv]
These sentiments about racial prejudice were further expounded in a separate dissent by Justice Robert Jackson who acknowledged that Korematsu was an American citizen by birth and had never been accused of being disloyal.[xlv] He declared a double standard existed—had Korematsu been a German or Italian alien, the Court would not have found that he violated the order. Justice Jackson also questioned the necessity of the orders, especially given the lack of evidence before the Court. Without more evidence, Justice Jackson explained, the Court is forced “to accept General DeWitt’s own unsworn, self-serving statement, untested by any cross-examination.” Aware of the dangerous precedent Korematsu would set and its potential to be a “loaded weapon” for the executive branch, Justice Jackson warned that once a judicial opinion rationalizes such an order to prove its constitutionality, “the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens.”[xlvi]
The Court ruled on Ex Parte Endo on the same day as Korematsu; it was the only action not to challenge a criminal conviction because Mitsuye Endo was never charged or tried. Additionally, Endo was the only action that involved a petition for writ of habeas corpus, and Endo was the only female litigant in the internment litigation. Like Korematsu, Hirabayashi, and Yasui, Endo was born in the US and had never been to Japan, nor did she speak or read Japanese. After being dismissed from her job after Pearl Harbor, Endo was housed at the Tanforan Assembly Center, a converted racetrack near San Francisco surrounded by armed guard towers. She was later removed to the Tule Lake War Relocation Center, temporary military-style camps in California near the Oregon border.
Just like the other cases, the Court in Endo avoided determining the constitutionality of internment by basing its ruling on administrative law grounds to shield the executive branch from accountability.[xlvii] Justice William O. Douglas wrote the unanimous opinion ruling that the US government could not continue to detain a citizen who was “concededly loyal” to the US[xlviii] Justice Douglas, a Roosevelt loyalist with presidential aspirations, was well aware of the political implications of the case.[xlix] To Justice Douglas, exclusion was about loyalty, not race. With the release of the Japanese American internees, Justice Douglas thought justice would be served and the integrity of Roosevelt Administration’s detention policy would be maintained.
The administrative law framework of the opinion was apparent from the beginning. Two-thirds of the opinion was devoted to the origins of the relevant executive orders and legislative acts. Executive Order 9066 delegated power to the military to bar access to military areas. With regard to the Court’s framing of this issue, Professor Jerry Kang argues that “in Endo, the Supreme Court manipulated the question of executive and congressional authorization to deny accountability. By finding that the full-blown internment had never been authorized by the President and Congress, the suffering of Japanese Americans was never attributed to the actors in fact responsible.”[l] Support for this claim is found where Justice Douglas provides political cover to Congress and President Roosevelt by explaining that no assumption should be made that “Congress and the President intended that the discriminatory action should be taken against these people wholly on account of their ancestry even though the government conceded their loyalty to this country. We cannot make such an assumption.”[li]
The avoidance of constitutional issues was strongly criticized in separate concurrences by Justices Murphy and Roberts. First, Justice Murphy insisted that Endo’s detention and the internment was based on race, and “racial discrimination…bears no reasonable relation to military necessity and is utterly foreign to the ideals and tradition of the American people.”[lii] Second, Justice Roberts criticized the majority’s avoidance of the underlying constitutional issues: “The opinion… attempts to show that neither the executive nor the legislative arm of the Government authorized the detention of the reliable.”[liii] For Justice Roberts, Endo posed a serious constitutional question implicating the Bill of Rights and the guarantee of due process of law.[liv]
Vindication for Japanese American internees occurred forty years later. On January 31, 1983, Korematsu filed a petition for writ of coram nobis in the Northern District of California, asking the court to overturn his criminalconviction because government attorneys suppressed or destroyed evidence thatnegatively impacted the court’s ruling.[lv] In response to Korematsu’sclaim, the government acknowledged the internment as an “unfortunateepisode,” but urged the court not to rule on the merits of the substantiveallegations of fraud, misrepresentation, and suppression of evidence.[lvi] Soon thereafter, Hirabayashi andYasui filed separate coram nobis petitions in Seattle and Portland, respectively. As the coram nobis litigation gained momentum, the report by the Commission on Wartime Relocation and Internment of Civilians recommended that Congress issue a national apology to Japanese Americans and provide redress of $20,000 to each surviving camp member, and that there be a presidential pardon of those convicted of violating military orders.[lvii]
At Korematsu’s final hearing, Judge Marilyn Hall Patel determined that the government relied on baseless misrepresentations and the racist views of military commanders. Based on those findings, Patel granted a writ of coram nobis, and dismissed Korematsu’s indictment. Unfortunately, this was only a partial victory because, as Judge Patel explained, her ruling did nothing to affect the Supreme Court decision which remains law.[lviii] Three years after the adjudication in Korematsu’s case, Hirabayashi and Yasui were also successful in their coram nobis cases. Later as senior citizens, Korematsu, Hirabayashi, and Yasui were each awarded the Presidential Medal of Freedom.
III. Hawaii v. Trump: The Supreme Court is Again on the Wrong Side of History
Japanese American internment is one of the twentieth century’s most prominent mass trampling of civil liberties, and it has been widely condemned as racist governmental and judicial conduct towards Japanese and Japanese Americans.[lix] As for Korematsu, it has been widely condemned by scholars and jurists and serves as a cautionary tale: during a time of war, or amidst claims of military necessity, the courts must protect constitutional guarantees.[lx] Unfortunately, to the dismay of civil rights advocacy groups, the mistakes of Korematsu were reopened and reinforced writ large in the Supreme Court’s decision in Trump v. Hawaii.[lxi] Hawaii upheld Presidential Proclamation 9645 signed by President Trump, which restricted travel in the US for people from seven Muslim-majority countries: Iran, North Korea, Syria, Libya, Somalia, Yemen, and Venezuela, or for refugees without valid travel documents.[lxii] The proclamation sought to improve vetting procedures for foreign nationals traveling to the US by identifying information deficiencies used to determine whether nationals of particular countries present a security threat. Trump concluded that it was necessary to impose entry restrictions on nationals of countries that present national security risks. Hawaii and several other states and groups challenged the proclamation and the two precursory executive orders also issued by Trump on statutory and constitutional grounds.[lxiii] The plaintiffs cited a variety of statements by Trump and administration officials, arguing that the proclamation and its preceding orders were motivated by anti-Muslim animus. The Ninth Circuit Court of Appeals affirmed the district court’s granting of a nationwide preliminary injunction barring enforcement of the restrictions.
The Court reversed the Ninth Circuit’s ruling that Trump’s proclamation violated the Establishment Clause in a 5–4 decision, and the majority concluded that it would uphold the policy set forth in Trump’s latest proclamation even though its primary justification might be unconstitutional. The Court wholeheartedly accepted the government’s claim that the travel ban was justified by national security, even though a fundamental constitutional liberty interest was at stake. The decision of the Court, written by Chief Justice John Roberts, examined the significance of a series of statements with racial undertones by the President during the presidential campaign and after the President assumed office. Without deciding the soundness of the policy, the Court deferred to the President’s prerogative, and found that the government had offered a sufficient national security justification, separate from religious animus, to survive rational basis review.
Justice Sonia Sotomayor, dissenting, complained that by refusing to look behind the plain language of the proclamation, the Court’s majority had ignored abundant evidence that the proclamation was “driven primarily by anti-Muslim animus, rather than by the Government’s asserted national-security justifications.”[lxiv] Sotomayor’s impassioned assertions echo the concerns brought by Justices Murphy and Jackson in their fiery dissents in Korematsu. Even the Court’s rational-basis review, Justice Sotomayor said, should have demonstrated that “the primary purpose and function of the Proclamation is to disfavor Islam by banning Muslims from entering our country.”[lxv] Here Justice Sotomayor powerfully cited more than a dozen instances, before and after Trump was sworn in as President, in which Trump tweeted or issued anti-Muslim sentiments to support her claim that Trump’s policy “masquerades behind a façade of national security concerns.”[lxvi]
Justice Sotomayor professed that the majority employed the same rationale that produced the tragic result in Korematsu. In comparing the two majority opinions, Justice Sotomayor points to “stark parallels” in the reasoning of the majority opinion and the Korematsu opinion: (1) “[t]he Government invoked an ill-defined national-security threat to justify an exclusionary policy of sweeping proportion;” (2) “the exclusion order was rooted in dangerous stereotypes about, inter alia, a particular group’s suppose inability to assimilate and desire to harm the United States;” (3) “the Government was unwilling to reveal its own intelligence agencies’ views of the alleged security concerns to the very citizens it purported to protect;” and (4) “there was strong evidence that impermissible hostility and animus motivated the Government’s policy.”[lxvii] Justice Sotomayor then chastised the majority in her conclusion:
By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one “gravely wrong” decision with another.
This comparison triggered an angry response from Justice Roberts, who criticized his colleague for using “rhetorical advantage” and wrote, “Korematsu has nothing to do with this case. The forcible relocation of US citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority.”[lxviii] Justice Roberts then offered the most powerful rebuke of Korematsu since the original dissents in Korematsu. Justice Roberts said Justice Sotomayor’s dissent “affords this court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.”[lxix]
In the wake of Hawaii, legal scholars have pointed out that the overruling of Korematsu merely whitewashes the enduring shame of the Court’s decision to condone the Trump administration’s devastating policies. Professor Jamal Greene describes the majority’s claim of overruling Korematsu as “grotesque” because “it condones racism with one hand but deploys tokenism with the other.”[lxx] Scholars Eric Yamamoto and Rachel Oyama add:
[T]he [Hawaii]majority did not extend its repudiation to the most dangerous aspect of Korematsu—its unconditional deference to the executive branch. Instead, [Hawaii]reinscribed this ‘logic’ by expressly embracing extreme judicial passivity in the foreign policy and immigration settings and validating the President’s proclamation ‘on a barren invocation of national security.’[lxxi]
Similarly, Neal Katyal, counsel of record for the state of Hawaii, argues nothing has really changed because one bad precedent was replaced by another bad precedent that enables excessive deference to the executive.[lxxii] Katyal urges that Hawaii purported to overrule Korematsu but actually recreated its reasoning.[lxxiii] In his view, “the majority opinions in both cases share common arguments and rhetorical devices. The majorities in both cases tempered the implicit premises of judicial oversight by hiding behind the shield of the executive branch’s intuitional competence.”[lxxiv]
From a similar vantage point, Professor Harold Hongju Koh asserts that in both Korematsu and Hawaii, the government invoked a grossly overbroad group stereotype and the “president invoked an amorphous national security threat to justify a sweeping discriminatory policy that significantly limited the freedom of a particular group.”[lxxv] Professor Eric Muller likewise observes, in “Hawaii the Court looked only at the veneer of neutrality that government lawyers tacked on to the President’s oft-stated and oft-tweeted confessions of animus against Muslims.”[lxxvi]
Relatedly, Muller further cautions that while Korematsu was overruled, a greater danger is posed by Hirabayashi which has been regularly cited as authority for upholding curfew orders by the government without question. This occurred when the Trump administration cited Hirabayashi in its argument to prevent a Guantanamo Bay detainee from distributing his artwork to his attorney and the public.[lxxvii] Muller suggests that oftentimes, curfews are characterized as a modest imposition, “Curfews…happen all the time…they’re enforced in the wake of natural disasters and civil unrest “[lxxviii] His concerns are not farfetched considering the impromptu transformations of major cities into police surveillance states this past summer.[lxxix]
In the final analysis, Hawaii will be remembered as another instance where the Court again turned a blind eye towards racist governmental conduct to pay deference to the government’s claims of national security. By not learning the lessons of Korematsu and the internment, the Court dishonored the memories of Fred Korematsu, Gordon Hirabayashi, Minoru Yasui, Mitsuye Endo, and the experiences of all Japanese and Japanese Americans interned during World War II. Mindful of Korematsu’s legacy, we must do better. As national security and civil liberty tensions reemerged in the aftermath of September 11, Dale Minami, civil rights lawyer and lead attorney for Korematsu’s coram nobis legal team, and Professor Susan Serrano wrote, “[W]e must engage ourselves to assure that the vast national security regime does not overwhelm the civil liberties of vulnerable groups. This means exercising our political power, making our dissents heard, publicizing injustices done to our communities as well as to others, and enlisting allies from diverse communities.”[lxxx]
Two decades later, Minami’s hopeful words still resonate. It remains imperative that people rise up and stand strong in unity for social justice. This anti-racist work was seen and heard when members of the Black Lives Matter movement, along with Muslim, Latino, Jewish, and Asian communities, and civil rights and interfaith groups, stood in solidarity against Trump’s travel ban in 2017. And during the coronavirus pandemic, millions of people from all walks of life likewise joined Black Lives Matter in protests against police violence and racial injustice. Undoubtedly, such inspiring collective action strengthens our spirit and resilience in the ongoing struggle against white privilege and white supremacy.
Harvey Gee is an attorney in San Francisco. Mr. Gee previously served as an attorney with the Office of the Federal Public Defender in Las Vegas and Pittsburgh, the Federal Defenders of the Middle District of Georgia, and the Office of the Colorado State Public Defender. Mr. Gee received his BA in political science from Sonoma State University, his JD from St. Mary’s School of Law, and his LLM in litigation and dispute resolution from The George Washington Law School. He was a US Supreme Court Fellows Program Finalist in 2012.
[i] Eric K. Yamamoto and Rachel Oyama, “Masquerading Behind a Face of National Security,” Yale Law Journal Forum, (30 January 2019): 699. https://www.yalelawjournal.org/forum/masquerading-behind-a-facade-of-national-security.
[ii] Brief of Korematsu, Karen, Jay Hirabayashi, Holly Yasui, the Fred T. Korematsu Center for Law and Equality, Civil Rights Organizations, and National Bar Associations of Color as amici curiae in support of respondents, Trump v. Hawaii, 136 S. Ct. 923 (30 March 2018).
[iii] Eric K. Yamamoto et al., “Loaded Weapon” Revisited: The Trump Era Import of Justice Jackson’s Warning in Korematsu, Asian American Law Review 24, (2017): 6. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3488759
[iv] Angelo N. Ancheta, Race, Rights, And the Asian American Experience (New Brunswick: Rutgers University Press, 1998): 31. https://catalogue.nla.gov.au/Record/1714369
[v] Geoffrey R. Stone, “Civil liberties v. national security in the law’s open areas,” B.U. Law Review 86, (2006): 1320. https://chicagounbound.uchicago.edu/journal_articles/4554/
[vi] Gordon K. Hirabayashi, et al, A principled stand: the story of Hirabayashi v. United States (Seattle, WA: University of Washington, 2013): x-xi. https://www.jstor.org/stable/j.ctvcwn7n2
[vii] Trump v. Hawaii, 138 S.Ct.2392, 2420 (2018).
[viii] “Lawyers draw similarities between Trump travel ban, Japanese internment,” CBS Sacramento, 15 May 2017, https://sacramento.cbslocal.com/2017/05/15/trump-travel-ban-japanese-internment-camps/ .
[ix] Neal Kumar Katyal, “Trump v. Hawaii: how the supreme court simultaneously overturned and revived Korematsu,” Yale Law Journal Forum, (30 January 2019): 644-46. https://www.yalelawjournal.org/forum/trump-v-hawaii
[x] Christina Wilkie, “Biden pledges to end Trump’s ‘Muslim ban’ on his first day in office,” CNBC, 20 July 2020, https://www.cnbc.com/2020/07/20/biden-pledges-to-end-trumps-muslim-ban-on-his-first-day-in-office.html.
[xi] “Biden Kicks Off Term With Executive Orders and Prime-Time Celebration,” NY Times, 21 January 2021, https://www.nytimes.com/live/2021/01/20/us/biden-inauguration.
[xii] Eric K. Yamamoto et al., Race, Rights and Reparation: Law and the Japanese American Internment, 2nd. ed 2013): 114-15. https://repository.uchastings.edu/faculty_books/9/
[xiii] Ibid, 105-07.
[xiv] Noah Feldman, Scorpions: The Battle and Triumphs of FDR’s Great Supreme Court Justices (Twelve, 2010): 243. https://wcfia.harvard.edu/publications/scorpions-battles-and-triumphs-fdr%E2%80%99s-great-supreme-court-justices
[xv] Korematsu v. United States, 323 U.S. 214, 223 (1944).
[xvi] Eric K. Yamamoto et al., Race, Rights and Reparation: Law and the Japanese American Internment, 2nd. ed (2013): 106-08.
[xvii] Serrano, Susan Kiyomi and Dale Minami, Korematsu v. United States: a “Constant caution” in a time of crisis, Asian Law Journal 10 (2003): 37, 38. https://core.ac.uk/download/pdf/211322222.pdf
[xviii] Eric K. Yamamoto et al., Race, Rights and Reparation: Law and the Japanese American Internment, 2nd. ed (2013): 406.
[xix] Ibid: 391.
[xx] Neal K. Katyal, and Laurence H. Tribe, “Waging War, Deciding Guilt: Trying the Military Tribunals,” Yale Law Journal, 111 (2002): 1259, 1259-1260. https://digitalcommons.law.yale.edu/ylj/vol111/iss6/1/
[xxi] Jonathan Hafertz, Habeas Corpus After 9/11: Confronting America’s New Global Detention System (2011):160-62.
[xxii] Harvey Gee, “Habeas Corpus, Civil Liberties, and Indefinite Detention During Wartime: From Ex Parte Endo and the Japanese American Internment to the War on Terrorism and Beyond,” University of the Pacific Law Review, 47 (2016): 791. https://archive.mcgeorge.edu/documents/Publications/geeTUOPLR474.pdf
[xxiii] Harvey Gee, “Journey Towards Justice: The Historical and Legal Legacy of Fred Korematsu and the Japanese American Internment in a Post-9/11,” Suffolk U. Law. Review, 50 (2017): 237. https://cpb-us-e1.wpmucdn.com/sites.suffolk.edu/dist/3/1172/files/2020/01/Gee_Lead.pdf
[xxiv] Erwin Chemerinsky, “Korematsu v. United States: A tragedy hopefully never to be repeated,” Pepperdine Law. Review, 39 (2011): 170. https://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1356&context=plr
[xxv] Julia Glum, “Trump Muslim ban and FDR’s Japanese Internment Camps: How Anti-Islam Debate Compares to Roosevelt’s WWII policies,” International Business Times, 10 December 2015. https://www.ibtimes.com/trump-muslim-ban-fdrs-japanese-internment-camps-how-anti-islam-debate-compares-2218243
[xxvi] “Trump administration learned all the wrong lessons from history,” Japanese American Citizens League, 26 June 2018, https://jacl.org/trump-administration-learned-all-the-wrong-lessons-fromhistory [https://perma.cc/32RN-NMNC].
[xxvii] Tess Bridgeman, et al., “Gitmo is not the answer,” SLATE, 31 August 2018, https://slate.com/news-and-politics/2018/08/the-question-of-what-to-do-with-isis-detainees-is-trickythat-doesnt-mean-we-should-send-them-to-gitmo.html [https://perma.cc/PH5G-ZWXB].
[xxviii] Gordon K. Hirabayashi et al., A principled stand: the story of Hirabayashi v. United States (2013): xi-xii.
[xxix] Hirabayashi v. United States, 320 U.S. 81, 88 (1943).
[xxx] Lorraine K. Bannai, Enduring conviction: Fred Korematsu and his quest for justice, The Western Historical Quarterly 47, (2015): 87. https://www.researchgate.net/publication/306105250_Enduring_Conviction_Fred_Korematsu_and_His_Quest_for_Justice_Scott_and_Laurie_Oki_Series_in_Asian_American_Studies_By_Lorraine_K_Bannai
[xxxi] 320 U.S. 81 (1943).
[xxxii] Gordon K. Hirabayashi et al., A Principled Stand: The Story of Hirabayashi v. United States (2013): xiii.
[xxxiii] Eric K. Yamamoto et al., Race, Rights and Reparation: Law and the Japanese American Internment (2d. ed 2013): 105.
[xxxiv] Noah Feldman, Scorpions: The Battle and Triumphs of FDR’s Great Supreme Court Justices (Twelve, 2010): 235.
[xxxv] Lorraine K. Bannai, Enduring Conviction: Fred Korematsu and his Quest for Justice. (2015): 84.
[xxxvi] Eugene Grossman, “Korematsu: A Melange of Military Imperatives,” Law & Contemporary Problems 68, (2005): 19. https://scholarship.law.duke.edu/lcp/vol68/iss2/4/
[xxxvii] Lorraine K. Bannai, Enduring Conviction: Fred Korematsu and his Quest for Justice. (2015):11-12.
[xxxviii] Korematsu v. United States, 323 U.S. 214, 223 (1944).
[xxxix] Korematsu v. United States, 323 U.S. 225-42 (1944) (Roberts J. & Murphy, J. dissenting).
[xl] Korematsu v. United States, 323 U.S. 242 (1944) (Murphy, J. dissenting).
[xli] Korematsu v. United States, 323 U.S. 236 (1944) (Murphy, J. dissenting).
[xlii] Korematsu v. United States, 323 U.S. 236-37 (1944) (Murphy, J. dissenting).
[xliii] Korematsu v. United States, 323 U.S. 214, 232 (1944) (Roberts, J. dissenting).
[xliv] Korematsu v. United States, 323 U.S. 226 (1944) (Roberts, J. dissenting).
[xlv] Korematsu v. United States, 323 U.S. 242-43 (1944) (Jackson, J. dissenting).
[xlvi] Korematsu v. United States, 323 U.S. at 246 (1944) (Jackson, J. dissenting).
[xlvii] Jerry Kang, “Watching the watchers: enemy combatants in the internment’s shadow,” Law and Contemporary Problems 68, (2005) 260; 271. Korematsu v. United States, 584 F. Supp. 1406, 1410 (N.D. Cal. 1984). https://scholarship.law.duke.edu/lcp/vol68/iss2/12/
[xlviii] Ex Parte Endo, 323 U.S. 283, 302 (1944).
[xlix] Noah Feldman, Scorpions: The Battle and Triumphs of FDR’s Great Supreme Court Justices (Twelve, 2010): 241.
[l] Jerry Kang, “Watching the Watchers: Enemy Combatants in the Internment’s Shadow,” Law and Contemporary Problems 68, (2005): 260; 267.
[li] Ex Parte Endo, 323 U.S. 283, 301 (1944).
[lii] Ex Parte Endo, 323 U.S. 283, 307-308 (1944) (Murphy, J. dissenting).
[liii] Ex Parte Endo, 323 U.S. 283, 308 (1944) (Roberts, J. dissenting).
[liv] Ex Parte Endo, 323 U.S. 283, 310 (1944) (Roberts, J. dissenting).
[lv] Korematsu v. United States, 584 F. Supp. 1406, 1410 (N.D. Cal. 1984).
[lvi] Korematsu v. United States, 584 F. Supp. 1406, 1413 (N.D. Cal. 1984).
[lvii] Lorraine K. Bannai, Enduring Conviction: Fred Korematsu and his Quest for Justice (2015): 163-72.
[lviii] Korematsu v. United States, 584 F. Supp. 1406, 1420 (N.D. Cal. 1984).
[lix] Susan Kiyomi Serrano and Dale Minami, “Korematsu v. United States: a ‘Constant caution’ in a time of crisis,” Asian Law Journal 10, (2003): 41.
[lx] Eric K. Yamamoto, and Rachel Oyama, “Masquerading Behind a Face of National Security, Yale Law Journal Forum,” 30 January 2019: 689.
[lxi] Trump v. Hawaii, 138 S.Ct.2392, 2420 (2018).
[lxii] 82 Fed.Reg.45161 (2017).
[lxiii] Executive Order No.13769, 82 Fed.Reg.8977 (2017); Executive Order No.13780, 82 Fed.Reg.13209 (2017).
[lxiv] Trump, 138 S.Ct. at 2348 (Sotomayor, J., dissenting).
[lxv] Trump, 138 S.Ct. at 2445 (Sotomayor, J., dissenting).
[lxvi] Trump, 138 S.Ct. at 2433 (Sotomayor, J., dissenting).
[lxvii] Trump, 138 S.Ct. at 2447 (Sotomayor, J., dissenting).
[lxviii] Trump v. Hawaii, 138 S.Ct.2392, 2423 (2018).
[lxix] Trump, 138 S.Ct. at 2423.
[lxx] Jamal Greene, “Is Korematsu good law?” Yale Law Journal Forum, 30 January 2019: 630. https://www.yalelawjournal.org/forum/is-korematsu-good-law
[lxxi] Eric K. Yamamoto, and Rachel Oyama, “Masquerading behind a face of national security,” Yale Law Journal Forum, 30 January 2019: 715 (citing to Trump, 138 S.Ct. at 2448; 2447 (Sotomayor J., dissenting)).
[lxxii] Neal Kumar Katyal, “Trump v. Hawaii: how the supreme court simultaneously overturned and revived Korematsu,” Yale Law Journal Forum, 30 January 2019: 642.
[lxxiii] Ibid: 645.
[lxxiv] Ibid: 646.
[lxxv] Harold Hongju Koh, “Symposium: Trump v. Hawaii—Korematsu’s ghost and national- security masquerades,” SCOTUSblog, https://www.scotusblog.com/2018/06/symposium-trump-v-hawaii-korematsus-ghost-and-national-security-masquerades/.
[lxxvi] Eric L. Muller, “Korematsu, Hirabyashi, and the second monster,” Texas Law Review 98, (2020): 744; 746. https://texaslawreview.org/wp-content/uploads/2020/03/Muller.Printer.pdf
[lxxvii] Nicole Goodkind, “Trump administration uses Japanese internment example to deny rights to detainees,” NEWSWEEK, 15 June 2018, https://www.newsweek.com/guantanamo-bay-donaldtrump-japanese-internment-980049 [https://perma.cc/8PEB-7HC9].
[lxxviii] Eric L. Muller, “Korematsu, Hirabayashi, and the second monster,” Texas Law Review 98, (2020): 753.
[lxxix] Zolan Kanno-Youngs, “U.S. watched George Floyd protests in 15 cities using aerial surveillance,” NY Times, 19 June 2020, https://www.nytimes.com/2020/06/19/us/politics/george-floyd-protests-surveillance.html.
[lxxx] Susan Kiyomi Serrano and Dale Minami, “Korematsu v. United States: a constant caution in a time of crisis,” Asian Law Journal 10, (2003): 49. https://core.ac.uk/download/pdf/211322222.pdf