KIYOSHI HIRABAYASHI v. UNITED STATES
“On December 8, 1941, one day after the bombing of Pearl Harbor by a Japanese air force, Congress declared war against Japan. 55 Stat. 795, 50 U.S.C.A.Appendix, preceding section 1 note. On February 19, 1942, the President promulgated Executive Order No. 9066. 7 Federal Register 1407. The Order recited that 'the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities as defined in Section 4, Act of April 20, 1918, 40 Stat. 533, as amended by the Act of November 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655 (50 U.S.C.A. 104)'. By virtue of the authority vested [320 U.S. 81, 86] in him as President and as Commander in Chief of the Army and Navy, the President purported to 'authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion.' ”
It seems to me that this executive order exceeds federal authority both violating the rights of the States and the People.
“Beginning on March 24, 1942, the military commander issued a series of Civilian Exclusion Orders pursuant to the provisions of Public Proclamation No. 1. Each such order related to a specified area within the territory of his command. The order applicable to appellant was Civilian Exclusion Order No. 57 of May 10, 1942. 7 Federal Register 3725. It directed that from and after 12:00 noon, May 16, 1942, all persons of Japanese ancestry, both alien and non-alien, be excluded from a specified portion of Military Area No. 1 in Seattle, including appellant's place of residence, [320 U.S. 81, 89] and it required a member of each family, and each individual living alone, affected by the order to report on May 11 or May 12 to a designated Civil Control Station in Seattle. Meanwhile the military commander had issued Public Proclamation No. 4 of March 27, 1942, which recited the necessity of providing for the orderly evacuation and resettlement of Japanese within the area, and prohibited all alien Japanese and all persons of Japanese ancestry from leaving the military area until future orders should permit.”
Here is the end result of delegating power to those not constitutionally endowed to exercise it.
“Appellant does not deny that he knowingly failed to obey the curfew order as charged in the second count of the indictment, or that the order was authorized by the terms of Executive Order No. 9066, or that the challenged Act of Congress purports to punish with criminal penalties disobedience of such an order. His contentions are only that Congress unconstitutionally delegated its legislative power to the military commander by authorizing him to impose the challenged regulation, and that, even if the regulation were in other respects lawfully authorized, the Fifth Amendment prohibits the discrimination made between citizens of Japanese descent and those of other ancestry.”
Here the appellant makes a very restrained protest to the criminalizing of his life, liberty, and property. He does not claim that congress violated his 9th and 10th Amendment rights which they did.
“Executive Order No. 9066, promulgated in time of war for the declared purpose of prosecuting the war by protecting national defense resources from sabotage and espionage, and the Act of March 21, 1942, ratifying and confirming the Executive Order, were each an exercise of the power to wage war conferred on the Congress and on the President, as Commander in Chief of the armed forces, by Articles I and II of the Constitution. See Ex parte Quirin, 317 U.S. 1, 25 , 26 S., 63 S.Ct. 2, 9, 10, 87 L.Ed. --. We have no occasion to consider whether the President, acting alone, could lawfully have made the curfew order in question, or have authorized others to make it. For the President's action has the support of the Act of Congress, and we are immediately concerned with the question whether it is within the constitutional power of the national government, through the joint action of Congress and the Executive, to impose this restriction as an emergency war measure. The exercise of that power here involves no question of martial law or trial by military tribunal. Cf. Ex parte Milligan, 4 Wall. 2; Ex parte Quirin, supra. Appellant has been [320 U.S. 81, 93] tried and convicted in the civil courts and has been subjected to penalties prescribed by Congress for the acts committed.”
“The war power of the national government is 'the power to wage war successfully'. See Charles Evans Hughes, War Powers Under the Constitution, 42 A.B.A.Rep. 232, 238.”
Here the court is taking a Book to be a definitive interpretation of the constitution.
“It extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and from the dangers which attend the rise, prosecution and progress of war. Prize Cases, supra; Miller v. United States, 11 Wall. 268, 303, 314; Stewart v. Kahn, 11 Wall. 493, 506, 507; Selective Draft Law Cases (Arver v. United States), 245 U.S. 366 , 38 S.Ct. 159, L.R.A.1918C, 361, Ann.Cas.1918B, 856; McKinley v. United States, 249 U.S. 397 , 39 S.Ct. 324; United States v. Macintosh, 283 U.S. 605, 622 , 623 S., 51 S.Ct. 570, 574.”
At least here we see some court precedence.
ARVER v. U.S. is a case affirming the draft and involuntary military service its core assertion is “This however but challenges the existence of all power, for a governmental power which has no sanction to it and which therefore can only be exercised provided the citizen consents to its exertion is in no substantial sense a power.” this contention give preference to government power over the rights of citizen where ever there might be in conflict. The case also contains this flippant dismissal of the 13th amendment “Finally, as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation as the result of a war declared by the great representative body of the people can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement.”.
MCKINLEY v. U.S. is a case affirming the right of congress to control during war time the activities in the areas surrounding a military base. In this case the activity is prostitution but the grant of power as always is not confined to the circumstances of this case. It cites no authority or rational other than the desirability of the outcome to justify federal military control over state lands and private actions.
U.S. v. MACINTOSH is a case dealing with an immigrants unwillingness to swear that he will fight in unjust wars. I think the court decided rightly on the question before it because it is within congress's power to provide for the requirements of naturalization but not because the government may enslave its people to fight for it. “For its very nature the war power, when necessity calls for its exercise, tolerates no qualifications or limitations, unless found in the Constitution or in applicable principles of international law ” This a rational position as the constitution recognizes the rights of the people and the powers of the states both should I believe limit the war powers of the federal government. “To the end that war may not result in defeat, freedom of speech may, by act of Congress, be curtailed or denied so that the morale of the people and the spirit of the army may not be broken by seditious utterances; freedom of the press curtailed to preserve our military plans and movements from the knowledge of the enemy; deserters and spies put to death without indictment or trial by jury; ships and supplies requisitioned; property of alien enemies, theretofore under the protection of the Constitution, seized without process and converted to the public use without compensation and without due process of law in the ordinary sense of that term; prices of food and other necessities of life fixed or regulated; railways taken over and operated by the government; and other drastic powers, wholly inadmissible in time of peace, exercised to meet the emergencies of war.” Here the court repudiates the limits set by the constitution. It ignores the strong example set by 5th amendment's explicit exemption of “cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger” from the right to a Grand Jury. Since nothing in the constitution allows the government to act beyond its bounds in times of war those bounds should be inviolate. “No other conclusion is compatible with the well-nigh limitless extent of the war powers as above illustrated, which include, by necessary implication, the power, in the last extremity, to compel the armed service of any citizen in the land, without regard to his objections or his views in respect of the jutice or morality of the particular war or of war in general.” Limitless power of the government is anathema to our system of government and our rights as free people.
“Since the Constitution commits to the Executive and to Congress the exercise of the war power in all the vicissitudes and conditions of warfare, it has necessarily given them wide scope for the exercise of judgment and discretion in determining the nature and extent of the threatened injury or danger and in the selection of the means for resisting it.”
The presumption here that if the government is granted the any sort of power of any sort of thing it may exercise that power by any means it pleases without any regard for any limitations placed on it or any right, privileges, or immunities of the people which it may violate.
“Where, as they did here, the conditions call for the exercise of judgment and discretion and for the choice of means by those branches of the Government on which the Constitution has placed the responsibility of warmaking, it is not for any court to sit in review of the wisdom of their action or substitute it judgment for theirs.”
Here the court demures from it place in our system of government. Leaving the citizens without any recourse for redress of the wrongs done to them.
“The challenged orders were defense measures for the avowed purpose of safeguarding the military area in question, at a time of threatened air raids and invasion by the Japanese forces, from the danger of sabotage and espionage.”
Here the court deems the lands of the states and the homes and property of the people a “military area” thereby stripping from it the rights it might have held under a more accurate and proper description. No military action had yet happened nor was any enemy present the mere threat of possible danger was sufficient to transfer the lands of sovereign States into the control of the military.
“The alternative which appellant insists must be accepted is for the military authorities to impose the curfew on all citizens within the military area, or on none. In a case of threatened danger requiring prompt action, it is a choice between inflicting obviously needless hardship on the many, or sitting passive and unresisting in the presence of the threat. We think that constitutional government, in time of war, is not so powerless and does not compel so hard a choice if those charged with the responsibility of our national defense have reasonable ground for believing that the threat is real.”
Here the court defends the capricious application of measures against a subset of citizens as defined by their ethnicity. It claims that it may violate the rights of some citizens to reduce the hardship on others.
The court then presents a parade of horrors seeking to establish citizens of japanese ancestry as a danger to the war effort.
“The restrictions, both practical and legal, affecting the privileges and opportunities afforded to persons of Japanese extraction residing in the United States, have been sources of irritation and may well have tended to increase their isolation, and in many instances their attachments to Japan and its institutions.”
Here discrimination and abuse is justified by the fact that they have been subjected to abuse and discrimination. While this could be a motivator it is tautology at its worst when applied as policy.
“Whatever views we may entertain regarding the loyalty to this country of the citizens of Japanese ancestry, 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.”
Here is a justification for the punishment and oppression of a group because of the potential actions of some of its members. This is an unacceptable violation of the right of US citizens. It punishes for acts that may or may not be committed as well as punishing those not involved with the crimes.
“Appellant does not deny that, given the danger, a curfew was an appropriate measure against sabotage. It is an obvious protection against the perpetration of sabotage most readily committed during the hours of darkness. If it was an appropriate exercise of the war power its validity is not impaired because it has restricted the citizen's liberty. ”
He may not but I believe that it is an action which exceeds the powers granted to the federal government and would require local or state action to implement. Again the court asserts that the powers of the government trump the rights of the citizens and the limits of the constitution.
“But appellant insists that the exercise of the power is inappropriate and unconstitutional because it discriminates against citizens of Japanese ancestry, in violation of the Fifth Amendment. The Fifth Amendment contains no equal protection clause and it restrains only such discriminatory legislation by Congress as amounts to a denial of due process. Detroit Bank v. United States, 317 U.S. 329, 337 , 338 S., 63 S.Ct. 297, 301, 87 L.Ed. --, and cases cited. Congress may hit at a particular danger where it is seen, without providing for others which are not so evident or so urgent. Keokee Consol. Coke Co. v. Taylor, 234 U.S. 224, 227 , 34 S.Ct. 856.”
“No person shall … be deprived of life, liberty, or property, without due process of law” that people were deprived of liberty the court does not deny. It uses Detroit Bank v. United States as justification for congress's ability to pass laws which do not afford equal protection. “Unlike the Fourteenth Amendment the Fifth contains no equal protection clause and it provides no guaranty against discriminatory legislation by Congress.” while this does justify congress's targeting of specific racial groups it doesn't justify the actions taken by congress. On a side note add an equal protection amendment to the constitution would seem to be worthwhile.
“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. For that reason, legislative classification or discrimination based on race alone has often been held to be a denial of equal protection. Yick Wo v. Hopkins, 118 U.S. 356 , 6 S.Ct. 1064; Yu Cong Eng v. Trinidad, 271 U.S. 500 , 46 S.Ct. 619; Hill v. Texas, 316 U.S. 400 , 62 S.Ct. 1159. We may assume that these considerations would be controlling here were it not for the fact that the danger of espionage and sabotage, in time of war and of threatened invasion, calls upon the military authorities to scrutinize every relevant fact bearing on the loyalty of populations in the danger areas. Because racial discriminations are in most circumstances irrelevant and therefore prohibited, it by no means follows that, in dealing with the perils of war, Congress and the Executive are wholly precluded from taking into account those facts and circumstances which are relevant to measures for our national defense and for the successful prosecution of the war, and which may in fact place citizens of one ancestry in a different category from others.”
Here the court recognizes the unacceptable nature of racial discrimination but justifies it as it justifies the violation of citizens rights namely the need of the government to act without limitations during war or emergencies or other times it feels it ought to.
“Our investigation here does not go beyond the inquiry whether, in the light of all the relevant circumstances preceding and attending their promulgation, the challenged orders and statute afforded a reasonable basis for the action taken in imposing the curfew.”
Here the court seems to think that there is some virtue or justification in the fact that there was a rational basis for the violation of the rights of citizens and the over reach of federal power. As if a power gain by the government in reasonable circumstances would not be use in unreasonable ones.
“What we have said also disposes of the contention that the curfew order involved an unlawful delegation by Congress of its legislative power. The mandate of the Constitution, Art. 1, 1, that all legislative power granted 'shall be vested in a Congress' has never been thought, even in the administration of civil affairs, to preclude Congress from resorting to the aid of executive or administrative officers in determining by findings whether the facts are such as to call for the application of previously adopted legislative standards or definitions of Congressional policy.”
This I think is a weak but correct argument that congress can delegate the exercise of its powers which I belief is allowed by the necessary and proper clause.
“The Constitution as a continuously operating charter of government does not demand the impossible or the impractical.”
It is demands and allowances are simple and should not be judged on the ease or difficulty with which the government must act to remain within them. That it is difficult to accomplish certain objectives within the powers and limits even to the government is not a grant for the government to act beyond those power and limitations because that would make achieving its goals easier. It the government can not accomplish its desires within the bounds of the constitution it must abide with its inability or change the constitution which binds it. Do to otherwise is to see ourselves or our follow citizens sent to the camps (TOYOSABURO KOREMATSU v. UNITED STATES).
No comments:
Post a Comment