What happened in Korematsu v. United States?

0:05In early 1942, so shortly after the bombing of Pearl Harbor and shortly after the US enters into the war, President Roosevelt issues an Executive Order 9066, which is in to be generous and charitable is basically about securing military installations and trying to ensure that the military has the power to protect itself from potential sabotage, from agents of enemy countries who might have already been in the United States.

0:36There was already a statute on the books called the Alien Enemy Act of 1798, that allowed the government to detain nationals of countries with which we were at war, if there was some showing, that the National Post any kind of threat. Indeed we use that statute to detain hundreds, if not thousands, of German and Italian nationals during World War II. But when it came to Japanese nationals and Japanese Americans, the executive branch took a much more broad sword wholesale approach, where instead of doing individualized determinations, there was an effort to basically exclude on a categorical basis. Anyone of Japanese descent from, it turns out the entire west coast. This starts as a series of curfew orders where it was basically just restricting the liberty of Japanese and Japanese Americans. It turns into exclusion orders, which are basically saying you can't stay in the military district that comprise the entire west coast.

1:38You live in Seattle, you live in San Francisco, you can't stay there without breaking the law. Well, over 100 upwards of 120,000 Japanese nationals and Japanese Americans comply with these orders and relocate to internment camps spread out across the Rocky Mountains and other parts of the American West. There are a handful of folks who refuse to comply with those orders and end up being prosecuted under a criminal statute Congress passes in the summer of 1942, and Fred Korematsu is one of them. One of the odd things about the Korematsu case was what a lot of people associate with internment is that actually, Korematsu was an outlier. Korematsu was not someone who voluntarily complied with the order to relocate. He was someone who defiled it and he was prosecuted for his defiance. The Supreme Court in Korematsu upholds Korematsu's conviction for defiling the exclusion order by a 6-3 vote in a remarkably naive, I think opinion by Justice Hugo Black.

2:43One of the hills black says, ''It's not our job to second guess claims of necessity by government authorities.'' The backstory here is tragic. The federal government knew by the time it was briefing the Korematsu case, that there was no longer any meaningful threat of invasion of the West Coast. That it had the capacity to conduct individualized assessments of potential risks and so, therefore, didn't need these mass suspicion list policies. The federal government actually lies to the Supreme Court in its briefing and the Korematsu case. There are two or three steps of repudiation. The 1971 statute, the Non-Detention Act, that says, ''Hey, federal government, you can't hold people without some specific statutory authorization.'' There's the Commission for the Wartime Relocation and Internment of Civilians. There's really important congressional investigative body in

3:39the 1980s that actually produces a massively comprehensive and daming report, which is how we know about, for example, the government lying to the Supreme Court and how we know about the various misrepresentations that were made in that litigation. Congress in 1988 passes the Civil Liberties Act, which requires restitution and apology right to the victims, to those who were wrongly inturned as part of the policy. The specific convictions in most of the cases that went to the Supreme Court are vacated in the 1980s. Then finally, the Supreme Court ironically the Trump travel ban case in 2018 purports to overrule its earlier decision in Korematsu, nevermind that it wasn't doing much work anyway. We have come to accept that the internment episode was a dark stain on the civil liberties of our country. I think there's still some disagreement as to why, what was the state, and I think part of it was mass suspicion list attention.

4:39But I think also part of it was how much the Roosevelt administration did in that context without any specific authorization from Congress.