When The Laws Were Silent


Biddle, who alone among the high administration officials involved opposed the evacuation, described the situation in these words: “Apparently, the War Department’s course of action had been tentatively charted by Mr. McCloy and Colonel Karl Robin Bendetsen of the General Staff in the first ten days of February. General DeWitt’s final recommendation to evacuate was completed on February 13, and forwarded to Washington with a covering letter the next day. Mr. Stimson and Mr. McCloy did not, however, wait for this report, which contained the ‘finding’ on which their ‘military necessity’ argument to the President was based, but obtained their authority before the recommendation was received. On February 11 the President told the War Department to prepare a plan for wholesale evacuation, specifically including citizens. It was dictated, he concluded, by military necessity, and added, ‘Be as reasonable as you can.’ After the conference the Assistant Secretary reported to Bendetsen: ‘We have carte blanche to do what we want as far as the President is concerned.’” Biddle speculated on Roosevelt’s feelings about the matter: “I do not think he was much concerned with the gravity or implications of this step. He was never theoretical about things. What must be done to defend the country must be done.” Biddle concluded with a remarkably perceptive observation: “Nor do I think that the constitutional difficulty plagued him—the Constitution has never greatly bothered any wartime President. That was a question of law, which ultimately the Supreme Court must decide. And meanwhile—probably a long meanwhile—we must get on with the war.”

Executive Order 9066, authorizing the removal of the ethnic Japanese from the West Coast, was signed by Roosevelt on February 19. Several weeks later Congress passed a law imposing criminal penalties for violations of the order or regulations that might be issued to implement it. First a curfew was imposed on the ethnic Japanese, then they were required to report to relocation centers, and finally they were taken to camps in the interior of California and in the mountain states. There was no physical brutality, but there were certainly severe hardships: removal from the place where one lived, often the forced sale of houses and businesses, and harsh living conditions in the Spartan quarters of the internment centers. As the war progressed, some restrictions were relaxed. Nisei volunteers made up the 442d Combat Team, which fought bravely in Italy against the Germans. Other internees were issued work permits that allowed them to leave the camp. Finally, most of those who were still interned were released by the beginning of 1945, as a result of the third Supreme Court decision in which the relocation policy was challenged.

Gordon Hirabayashi was born near Seattle to issei parents in 1918, and by 1942 he was a senior at the University of Washington. In May 1942 he disobeyed the curfew requirement imposed by military authorities pursuant to the President’s Executive Order, and seven days later he failed to report to register for evacuation. He was indicted and convicted in a federal court in Seattle on two counts of misdemeanor and sentenced to imprisonment for three months on each. He contended that the orders he was charged with violating were unconstitutional, but the federal judge in Seattle ruled against him.

Fred Korematsu, born in the United States to issei parents, was convicted of remaining in San Leandro, California, in violation of a military exclusion order applicable to him. The federal court in San Francisco overruled his claim that the order in question was unconstitutional, suspended his sentence, and placed him on probation for five years.


The cases were argued together before the U.S. Court of Appeals for the Ninth Circuit in San Francisco, which has jurisdiction over the Far Western part of the United States. Because of procedural variations, they reached the Supreme Court at different times. The case of Hirabayashi was sent directly there by the court of appeals and was argued in May 1943.

The Chief Justice at the time was Harlan F. Stone, who had been born in New Hampshire and practiced law in New York following his graduation from Columbia Law School, where he later served as dean. Eight months after Calvin Coolidge became President upon Harding’s death in 1923, he appointed Stone Attorney General, with a mandate to clean out the scandal-ridden Department of Justice. Stone obliged and was rewarded by an appointment as Associate Justice of the Supreme Court in 1925. During his sixteen years in that position he was identified as a member of the Court’s liberal wing, along with Justices Holmes, Brandeis, and Cardozo. When Charles Evans Hughes retired as Chief Justice in 1941, Roosevelt appointed Stone his successor.

The senior Associate Justice on the Court at the time that the Japanese internment cases were heard was Owen Roberts, a Philadelphia aristocrat who had mixed a successful private practice with occasional stints in public service. He had been a special prosecutor for the United States in several of the cases that arose out of the Harding administration’s Teapot Dome scandals and was appointed to the Supreme Court by President Herbert Hoover in 1930.