Hirabayashi v. United States

No. 870

Argued May 10, 11,1943

Decided June 21,1943

320 U.S. 81

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus



1. Where a defendant is convicted on two counts of an indictment and the

sentences are ordered to run concurrently, it is unnecessary on review

to consider the validity of the sentence on both of the counts if the

sentence on one of them is sustainable.



2. Pursuant to Executive Order No. 9066, promulgated by the President on

February 19, 1942, while the United States was at war with Japan, the

military commander of the Western Defense Command promulgated an order

requiring, inter alia, that all persons of Japanese ancestry within a

designated military area "be within their place of residence between the

hours of 8 p. m. and 6 a. m."  Appellant, a United States citizen of

Japanese ancestry, was convicted in the federal District Court for

violation of this curfew order.



Held:



(1) By the Act of March 21, 1942, Congress ratified and confirmed

Executive Order No. 9066, and thereby authorized and implemented such

curfew orders as the military commander should promulgate pursuant to

that Executive Order.



(2) It was within the constitutional authority of Congress and the

Executive, acting together, to prescribe this curfew order as an

emergency war measure.



In the light of all the facts and circumstances, there was substantial

basis for the conclusion, in which Congress and the military commander

united, that the curfew as applied was a protective measure necessary to

meet the threat of sabotage and espionage which would substantially

affect the war effort and which might reasonably be expected to aid a

threatened enemy invasion.



(3) The curfew order did not unconstitutionally discriminate against

citizens of Japanese ancestry.



(a) 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.



(b) The curfew order as applied, and at the time it was applied, was

within the boundaries of the war power.   [320 U.S. 82]



(c) The adoption by the Government, in the crisis of war and of

threatened invasion, of measures for the public safety, based upon the

recognition of fact and circumstances which indicate that a group of one

national extraction my menace that safety more than others, is not to be

condemned as unconstitutional merely because, in other and in most

circumstances, racial distinctions are irrelevant.



(d) An appropriate exercise of the war power is not rendered invalid by

the fact that it restricts the liberty of citizens.



(4) The promulgation of the curfew order by the military commander was

based on no unconstitutional delegation of legislative power.



The essentials of the legislative function are preserved when Congress

provide that a statutory command shall become operative upon

ascertainment of a basic conclusion of fact by a designated

representative of the Government.  The Act of March 21, 1942, which

authorized that curfew orders be made pursuant to Executive Order No.

9066 for the protection of war resources from espionage and sabotage,

satisfies those requirements.



Affirmed.



Response to questions certified by the Circuit Court of Appeals upon an

appeal to that court from a conviction in the District Court upon two

counts of an indictment charging violations of orders promulgated by the

military commander of the Western Defense Command.  This Court directed

that the entire record be certified, so that the case could be

determined as if brought here by appeal.  See 46 F. Supp. 657. [320 U.S.

83] STONE, J., lead opinion



MR. CHIEF STONE delivered the opinion of the Court.



Appellant, an American citizen of Japanese ancestry, was convicted in

the district court of violating the Act of Congress of March 21, 1942,

56 Stat. 173, 18 U.S.C.  97a, which makes it a misdemeanor knowingly to

disregard restrictions made applicable by a military commander to

persons in a military area prescribed by him as such, all as authorized

by an Executive Order of the President.



The questions for our decision are whether the particular restriction

violated, namely, that all persons of Japanese ancestry residing in such

an area be within their place of residence daily between the hours of

8:00 p.m. and 6:00 a.m., was adopted by the military commander in the

exercise of an unconstitutional delegation by Congress of its

legislative power, and whether the restriction unconstitutionally

discriminated between citizens of Japanese ancestry and those of other

ancestries in violation of the Fifth Amendment.



The indictment is in two counts.  The second charges that appellant,

being a person of Japanese ancestry, had on a specified date, contrary

to a restriction promulgated by the military commander of the Western

Defense Command, Fourth Army, failed to remain in his place of residence

[320 U.S. 84] in the designated military area between the hours of 8:00

o'clock p.m. and 6:00 a.m.  The first count charges that appellant, on

May 11 and 12, 1942, had, contrary to a Civilian Exclusion Order issued

by the military commander, failed to report to the Civil Control Station

within the designated area, it appearing that appellant's required

presence there was a preliminary step to the exclusion from that area of

persons of Japanese ancestry.



By demurrer and plea in abatement, which the court overruled (46 F.Supp.

657), appellant asserted that the indictment should be dismissed because

he was an American citizen who had never been a subject of and had never

borne allegiance to the Empire of Japan, and also because the Act of

March 21, 1942, was an unconstitutional delegation of Congressional

power.  On the trial to a jury, it appeared that appellant was born in

Seattle in 1918, of Japanese parents who had come from Japan to the

United States, and who had never afterward returned to Japan; that he

was educated in the Washington public schools, and, at the time of his

arrest was a senior in the University of Washington; that he had never

been in Japan or had any association with Japanese residing there.



The evidence showed that appellant had failed to report to the Civil

Control Station on May 11 or May 12, 1942, as directed, to register for

evacuation from the military area.  He admitted failure to do so, and

stated it had at all times been his belief that he would be waiving his

rights as an American citizen by so doing.  The evidence also showed

that, for like reason, he was away from his place of residence after

8:00 p.m. on May 9, 1942.  The jury returned a verdict of guilty on both

counts, and appellant was sentenced to imprisonment for a term of three

months on each, the sentences to run concurrently.



On appeal, the Court of Appeals for the Ninth Circuit certified to us

questions of law upon which it desired instructions [320 U.S. 85] for

the decision of the case.  See  239 of the Judicial Code as amended, 28

U.S.C.  346.  Acting under the authority conferred upon us by that

section, we ordered that the entire record be certified to this Court so

that we might proceed to a decision of the matter in controversy in the

same manner as if it had been brought here by appeal.  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 if we find

that the conviction on the second count, for violation of the curfew

order, must be sustained.  Brooks v. United States, 267 U.S. 432, 441;

Gorin v. United States, 312 U.S. 19, 33.



The curfew order which appellant violated, and to which the sanction

prescribed by the Act of Congress has been deemed to attach, purported

to be issued pursuant to an Executive Order of the President.  In

passing upon the authority of the military commander to make and execute

the order, it becomes necessary to consider in some detail the official

action which preceded or accompanied the order and from which it derives

its purported authority.



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. 

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. By virtue of the authority vested [320 U.S. 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.



On February 20, 1942, the Secretary of War designated Lt. General J. L.

DeWitt as Military Commander of the Western Defense Command, comprising

the Pacific Coast states and some others, to carry out there the duties

prescribed by Executive Order No. 9066.  On March 2, 1942, General

DeWitt promulgated Public Proclamation No. 1.  7 Federal Register 2320. 

The proclamation recited that the entire Pacific Coast, by its

geographical location is particularly subject to attack, to attempted

invasion by the armed forces of nations with which the United States is

now at war, and, in connection therewith, is subject to espionage and

acts of sabotage, thereby requiring the adoption of military measures

necessary to establish safeguards against such enemy operations. It

stated that the present situation requires as matter of military

necessity the establishment in the territory embraced by the Western

Defense Command of Military Areas and Zones thereof; it specified and

designated as military areas certain areas within the Western Defense

Command; and it declared that "such persons or classes of persons as the

situation may require" would, by subsequent proclamation, be excluded

from certain of these [320 U.S. 87] areas, but might be permitted to

enter or remain in certain others, under regulations and restrictions to

be later prescribed.  Among the military areas so designated by Public

Proclamation No. 1 was Military Area No. 1, which embraced, besides the

southern part of Arizona, all the coastal region of the three Pacific

Coast states, including the City of Seattle, Washington, where appellant

resided.  Military Area No. 2. designated by the same proclamation,

included those parts of the coastal states and of Arizona not placed

within Military Area No. 1.



Public Proclamation No. 2 of March 16, 1942, issued by General DeWitt,

made like recitals and designated further military areas and zones.  It

contained like provisions concerning the exclusion, by subsequent

proclamation, of certain persons or classes of persons from these areas,

and the future promulgation of regulations and restrictions applicable

to persons remaining within them.  7 Federal Register 2405.



An Executive Order of the President, No. 9102, of March 18, 1942,

established the War Relocation Authority, in the Office for Emergency

Management of the Executive Office of the President; it authorized the

Director of War Relocation Authority to formulate and effectuate a

program for the removal, relocation, maintenance and supervision of

persons designated under Executive Order No. 9066, already referred to;

and it conferred on the Director authority to prescribe regulations

necessary or desirable to promote the effective execution of the

program.  7 Federal Register 2165.



Congress, by the Act of March 21, 1942, 18 U.S.C.  97a, provided: That

whoever shall enter, remain in, leave, or commit any act in any military

area or military zone prescribed, under the authority of an Executive

order of the President, by the Secretary of War, or by any military

commander designated by the Secretary of War, contrary to the

restrictions applicable to any such area or zone or contrary [320 U.S.

88] to the order of the Secretary of War or any such military commander,

shall, if it appears that he knew or should have known of the existence

and extent of the restrictions or order and that his act was in

violation thereof, be guilty of a misdemeanor and upon conviction shall

be liable to fine or imprisonment, or both.



Three days later, on March 24, 1942, General DeWitt issued Public

Proclamation No. 3.  7 Federal Register 2543.  After referring to the

previous designation of military areas by Public Proclamations No. 1 and

2, it recited that . . . the present situation within these Military

Areas and Zones requires as a matter or military necessity the

establishment of certain regulations pertaining to all enemy aliens and

all persons of Japanese ancestry within said Military Areas and Zones. .

. . It accordingly declared and established that from and after March

27, 1942, all alien Japanese, all alien Germans, all alien Italians, and

all persons of Japanese ancestry residing or being within the

geographical limits of Military Area No. 1 . . . shall be within their

place of residence between the hours of 8:00 P.M. and 6:00 A.M., which

period is hereinafter referred to as the hours of curfew. It also

imposed certain other restrictions on persons of Japanese ancestry, and

provided that any person violating the regulations would be subject to

the criminal penalties provided by the Act of Congress of March 21,

1942.



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. 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.  7 Federal Register 2601.



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.



It will be evident from the legislative history that the Act of March

21, 1942, contemplated and authorized the curfew order which we have

before us.  The bill which became the Act of March 21, 1942, was

introduced in the Senate on March 9th and in the House on March 10th at

the request of the Secretary of War who, in letters to the Chairman of

the Senate Committee on Military Affairs and to the Speaker of the

House, stated explicitly that its purpose was to provide means for the

enforcement of orders issued under Executive Order No. 9066.  This

appears in the committee reports on the bill, which set out in full the

Executive Order and the Secretary's letter.  88 Cong.Rec. 2722, 2725;

H.R. Rep. No. 1906, 77th Cong.. [320 U.S. 90] 2d Sess.; S. Rep. No.

1171, 77th Cong., 2d Sess.  And each of the committee reports expressly

mentions curfew orders as one of the types of restrictions which it was

deemed desirable to enforce by criminal sanctions.



When the bill was under consideration, General DeWitt had published his

Proclamation No. 1 of March 2, 1942, establishing Military Areas Nos. 1

and 2, and that Proclamation was before Congress.  S.Rep. No. 1171, 77th

Cong., 2d Sess., p. 2; see also 88 Cong.Rec. 2724.  A letter of the

Secretary to the Chairman of the House Military Affairs Committee, of

March 14, 1942, informed Congress that General DeWitt is strongly of the

opinion that the bill, when enacted, should be broad enough to enable

the Secretary of War or the appropriate military commander to enforce

curfews and other restrictions within military areas and zones; and that

General DeWitt had indicated that he was prepared to enforce certain

restrictions at once for the purpose of protecting certain vital

national defense interests, but did not desire to proceed until

enforcement machinery had been set up. H.R. Rep. No. 1906, 77th Cong.,

2d Sess., p. 3.  See also letter of the Acting Secretary of War to the

Chairman of the Senate Military Affairs Committee, March 13, 1942, 88

Cong.Rec. 2725.



The Chairman of the Senate Military Affairs Committee explained on the

floor of the Senate that the purpose of the proposed legislation was to

provide means of enforcement of curfew orders and other military orders

made pursuant to Executive Order No. 9066.  He read General DeWitt's

Public Proclamation No. 1, and statements from newspaper reports that

"evacuation of the first Japanese aliens and American-born Japanese" was

about to begin.  He also stated to the Senate that "reasons for

suspected widespread fifth-column activity among Japanese" were to be

found in the system of dual citizenship which Japan deemed applicable to

American-born [320 U.S. 91] Japanese, and in the propaganda disseminated

by Japanese consuls, Buddhist priests and other leaders, among

American-born children of Japanese.  Such was stated to be the

explanation of the contemplated evacuation from the Pacific Coast area

of persons of Japanese ancestry, citizens as well as aliens.  88

Cong.Rec. 2722-2726; see also pp. 2729, 2730.  Congress also had before

it the Preliminary Report of a House Committee investigating national

defense migration, of March 19, 1942, which approved the provisions of

Executive Order No. 9066, and which recommended the evacuation, from

military areas established under the Order, of all persons of Japanese

ancestry, including citizens.  H.R. Rep. No. 1911, 77th Cong., 2d Sess. 

The proposed legislation provided criminal sanctions for violation of

orders, in terms broad enough to include the curfew order now before us,

and the legislative history demonstrates that Congress was advised that

curfew orders were among those intended, and was advised also that

regulation of citizen and alien Japanese alike was contemplated.



The conclusion is inescapable that Congress, by the Act of March 21,

1942, ratified and confirmed Executive Order No. 9066.  Prize Cases, 2

Black 635, 671; Hamilton v. Dillin, 21 Wall, 73, 96-97; United States v.

Heinszen & Co., 206 U.S. 370, 382-384; Tiaco v. Forbes, 228 U.S. 549,

556; Isbrandtsen-Moller Co. v. United States, 300 U.S. 139, 146-148;

Swayne & Hoyt, Ltd. v. United States, 300 U.S. 297, 300-303; Mason Co.

v. Tax Comm'n, 302 U.S. 186, 208.  And so far as it lawfully could,

Congress authorized and implemented such curfew orders as the commanding

officer should promulgate pursuant to the Executive Order of the

President.  The question then is not one of Congressional power to

delegate to the President the promulgation of the Executive Order, but

whether, acting in cooperation, Congress and the Executive have

constitutional authority to impose the curfew [320 U.S. 92] restriction

here complained of.  We must consider also whether, acting together,

Congress and the Executive could leave it to the designated military

commander to appraise the relevant conditions and on the basis of that

appraisal to say whether, under the circumstances, the time and place

were appropriate for the promulgation of the curfew order and whether

the order itself was an appropriate means of carrying out the Executive

Order for the "protection against espionage and against sabotage" to

national defense materials, premises and utilities.  For reasons

presently to be stated, we conclude that it was within the

constitutional power of Congress and the executive arm of the Government

to prescribe this curfew order for the period under consideration and

that its promulgation by the military commander involved no unlawful

delegation of legislative power.



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.  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. 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.  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, 245 U.S. 366; McKinley v.

United States, 249 U.S. 397; United States v. Macintosh, 283 U.S. 605,

622-623.  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.  Ex parte Quirin, supra, 28-29; cf. Prize Cases, supra,

670; Martin v. Mott, 12 Wheat. 19, 29.  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.



The actions taken must be appraised in the light of the conditions with

which the President and Congress were confronted in the early months of

1942, many of which [320 U.S. 94] since disclosed, were then peculiarly

within the knowledge of the military authorities.  On December 7, 1941,

the Japanese air forces had attacked the United States Naval Base at

Pearl Harbor without warning, at the very hour when Japanese diplomatic

representatives were conducting negotiations with our State Department

ostensibly for the peaceful settlement of differences between the two

countries.  Simultaneously or nearly so, the Japanese attacked Malaysia,

Hong Kong, the Philippines, and Wake and Midway Islands.  On the

following day, their army invaded Thailand.  Shortly afterwards, they

sank two British battleships.  On December 13th, Guam was taken.  On

December 24th and 25th, they captured Wake Island and occupied Hong

Kong.  On January 2, 1942, Manila fell, and on February 10th, Singapore,

Britain's great naval base in the East, was taken.  On February 27th,

the battle for the Java Sea resulted in a disastrous naval defeat to the

United Nations.  By the 9th of March, Japanese forces had established

control over the Netherlands East Indies; Rangoon and Burma were

occupied; Bataan and Corregidor were under attack.



Although the results of the attack on Pearl Harbor were not fully

disclosed until much later, it was known that the damage was extensive,

and that the Japanese, by their successes, had gained a naval

superiority over our forces in the Pacific which might enable them to

seize Pearl Harbor, our largest naval base and the last stronghold of

defense lying between Japan and the west coast.  That reasonably prudent

men charged with the responsibility of our national defense had ample

ground for concluding that they must face the danger of invasion, take

measures against it, and, in making the choice of measures, consider our

internal situation, cannot be doubted.



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 [320 U.S. 95] by the Japanese forces, from the danger

of sabotage and espionage.  As the curfew was made applicable to

citizens residing in the area only if they were of Japanese ancestry,

our inquiry must be whether, in the light of all the facts and

circumstances, there was any substantial basis for the conclusion, in

which Congress and the military commander united, that the curfew as

applied was a protective measure necessary to meet the threat of

sabotage and espionage which would substantially affect the war effort

and which might reasonably be expected to aid a threatened enemy

invasion.  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.



When the orders were promulgated, there was a vast concentration, within

Military Areas No. 1 and 2, of installations and facilities for the

production of military equipment, especially ships and airplanes. 

Important Army and Navy bases were located in California and Washington.

 Approximately one-fourth of the total value of the major aircraft

contracts then let by Government procurement officers were to be

performed in the State of California.  California ranked second, and

Washington fifth, of all the states of the Union with respect to the

value of shipbuilding contracts to be performed. [320 U.S. 96]



In the critical days of March, 1942, the danger to our war production by

sabotage and espionage in this area seems obvious.  The German invasion

of the Western European countries had given ample warning to the world

of the menace of the "fifth column."  Espionage by persons in sympathy

with the Japanese Government had been found to have been particularly

effective in the surprise attack on Pearl Harbor.  At a time of

threatened Japanese attack upon this country, the nature of our

inhabitants' attachments to the Japanese enemy was consequently a matter

of grave concern.  Of the 126,000 persons of Japanese descent in the

United States, citizens and non-citizens, approximately 112,000 resided

in California, Oregon and Washington at the time of the adoption of the

military regulations.  Of these, approximately two-thirds are citizens

because born in the United States.  Not only did the great majority of

such persons reside within the Pacific Coast states, but they were

concentrated in or near three of the large cities, Seattle, Portland and

Los Angeles, all in Military Area No. 1.



There is support for the view that social, economic and political

conditions which have prevailed since the close of the last century,

when the Japanese began to come to this country in substantial numbers,

have intensified their solidarity and have in large measure prevented

their assimilation as an integral part of the white population.  In

addition, large numbers of children of Japanese parentage [320 U.S. 97]

are sent to Japanese language schools outside the regular hours of

public schools in the locality.  Some of these schools are generally

believed to be sources of Japanese nationalistic propaganda, cultivating

allegiance to Japan.  Considerable numbers, estimated to be

approximately 10,000, of American-born children of Japanese parentage

have been sent to Japan for all or a part of their education.



Congress and the Executive, including the military commander, could have

attributed special significance, in its bearing on the loyalties of

persons of Japanese descent, to the maintenance by Japan of its system

of dual citizenship.  Children born in the United States of Japanese

alien parents, and especially those children born before December 1,

1924, are, under many circumstances, deemed, by Japanese law, to be

citizens of Japan.  No [320 U.S. 98] official census of those whom Japan

regards as having thus retained Japanese citizenship is available, but

there is ground for the belief that the number is large.



The large number of resident alien Japanese, approximately one-third of

all Japanese inhabitants of the country, are of mature years and occupy

positions of influence in Japanese communities.  The association of

influential Japanese residents with Japanese Consulates has been deemed

a ready means for the dissemination of propaganda and for the

maintenance of the influence of the Japanese Government with the

Japanese population in this country.



As a result of all these conditions affecting the life of the Japanese,

both aliens and citizens, in the Pacific Coast area, there has been

relatively little social intercourse between them and the white

population.  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.



Viewing these data in all their aspects, Congress and the Executive

could reasonably have concluded that these conditions have encouraged

the continued attachment of members of this group to Japan and Japanese

institutions.  [320 U.S. 99] These are only some of the many

considerations which those charged with the responsibility for the

national defense could take into account in determining the nature and

extent of the danger of espionage and sabotage in the event of invasion

or air raid attack.  The extent of that danger could be definitely known

only after the event, and after it was too late to meet it.  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.



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.  Like every military control of the population of a dangerous

zone in war time, it necessarily involves some infringement of

individual liberty, just as does the police establishment of fire lines

during a fire, or the confinement of people to their houses during an

air raid alarm -- neither of which could be thought to be an

infringement of constitutional right.  Like them, the validity of the

restraints of the curfew order depends on all the conditions which

obtain at the time the curfew is imposed and which support the order

imposing it. [320 U.S. 100]



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, 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.



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;

Yu Cong Eng v. Trinidad, 271 U.S. 500; Hill v. Texas, 316 U.S. 400.  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.  "We

must never forget that it is a constitution we are expounding," "a

constitution intended to endure for ages to come, and, consequently, to

be adapted to the various crises of human [320 U.S. 101] affairs." 

McCulloch v. Maryland, 4 Wheat. 316, 407, 415.  The adoption by

Government, in the crisis of war and of threatened invasion, of measures

for the public safety, based upon the recognition of facts and

circumstances which indicate that a group of one national extraction may

menace that safety more than others, is not wholly beyond the limits of

the Constitution, and is not to be condemned merely because, in other

and in most circumstances, racial distinctions are irrelevant.  Cf.

Clarke v. Deckebach, 274 U.S. 392, and cases cited.



Here, the aim of Congress and the Executive was the protection against

sabotage of war materials and utilities in areas thought to be in danger

of Japanese invasion and air attack.  We have stated in detail facts and

circumstances with respect to the American citizens of Japanese ancestry

residing on the Pacific Coast which support the judgment of the

war-waging branches of the Government that some restrictive measure was

urgent.  We cannot say that these facts and circumstances, considered in

the particular war setting, could afford no ground for differentiating

citizens of Japanese ancestry from other groups in the United States. 

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.



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.  We cannot close our

eyes to the fact, demonstrated by experience, that, in time of war,

residents having ethnic affiliations with an invading enemy may be a

greater source of danger than those of a different ancestry.  Nor can we

deny that Congress, and the military authorities acting with its [320

U.S. 102] authorization, have constitutional power to appraise the

danger in the light of facts of public notoriety.  We need not now

attempt to define the ultimate boundaries of the war power.  We decide

only the issue as we have defined it -- we decide only that the curfew

order as applied, and at the time it was applied, was within the

boundaries of the war power.  In this case, it is enough that

circumstances within the knowledge of those charged with the

responsibility for maintaining the national defense afforded a rational

basis for the decision which they made.  Whether we would have made it

is irrelevant.



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.



The purpose of Executive Order No. 9066, and the standard which the

President approved for the orders authorized to be promulgated by the

military commander -- as disclosed by the preamble of the Executive

Order -- was the protection of our war resources against espionage and

sabotage.  Public Proclamations No. 1 and 2, by General DeWitt, contain

findings that the military areas created and the measures to be

prescribed for them were required to establish safeguards against

espionage and sabotage.  Both the Executive Order and the Proclamations

were before Congress when the Act of March 21, 1942, was under

consideration.  To the extent that the Executive Order authorized orders

to be promulgated by the military commander to accomplish the declared

purpose of the [320 U.S. 103] Order, and to the extent that the findings

in the Proclamations establish that such was their purpose, both have

been approved by Congress.



It is true that the Act does not, in terms, establish a particular

standard to which orders of the military commander are to conform, or

require findings to be made as a prerequisite to any order.  But the

Executive Order, the Proclamations, and the statute are not to be read

in isolation from each other.  They were parts of a single program, and

must be judged as such.  The Act of March 21, 1942, was an adoption by

Congress of the Executive Order and of the Proclamations.  The

Proclamations themselves followed a standard authorized by the Executive

Order -- the necessity of protecting military resources in the

designated areas against espionage and sabotage.  And, by the Act,

Congress gave its approval to that standard.  We have no need to

consider now the validity of action if taken by the military commander

without conforming to this standard approved by Congress, or the

validity of orders made without the support of findings showing that

they do so conform.  Here, the findings of danger from espionage and

sabotage, and of the necessity of the curfew order to protect against

them, have been duly made.  General DeWitt's Public Proclamation No. 3,

which established the curfew, merely prescribed regulations of the type

and in the manner which Public Proclamations No. 1 and 2 had announced

would be prescribed at a future date, and was thus founded on the

findings of Proclamations No. 1 and 2.



The military commander's appraisal of facts in the light of the

authorized standard, and the inferences which he drew from those facts,

involved the exercise of his informed judgment.  But, as we have seen,

those facts, and the inferences which could be rationally drawn from

them, support the judgment of the military commander, that [320 U.S.

104] the danger of espionage and sabotage to our military resources was

imminent, and that the curfew order was an appropriate measure to meet

it.



Where, as in the present case, the standard set up for the guidance of

the military commander, and the action taken and the reasons for it, are

in fact recorded in the military orders, so that Congress, the courts

and the public are assured that the orders, in the judgment of the

commander, conform to the standards approved by the President and

Congress, there is no failure in the performance of the legislative

function.  Opp Cotton Mills v. Administrator, 312 U.S. 126, 142-146, and

cases cited.  The essentials of that function are the determination by

Congress of the legislative policy and its approval of a rule of conduct

to carry that policy into execution.  The very necessities which attend

the conduct of military operations in time of war, in this instance as

in many others, preclude Congress from holding committee meetings to

determine whether there is danger, before it enacts legislation to

combat the danger.



The Constitution, as a continuously operating charter of government,

does not demand the impossible or the impractical.  The essentials of

the legislative function are preserved when Congress authorizes a

statutory command to become operative upon ascertainment of a basic

conclusion of fact by a designated representative of the Government. 

Cf. The Aurora, 7 Cranch 382; United States v. Chemical Foundation, 272

U.S. 1, 12.  The present statute, which authorized curfew orders to be

made pursuant to Executive Order No. 9066 for the protection of war

resources from espionage and sabotage, satisfies those requirements. 

Under the Executive Order, the basic facts, determined by the military

commander in the light of knowledge then available, were whether that

danger existed and whether a curfew order was an appropriate means of

minimizing the danger.  Since his findings to [320 U.S. 105] that effect

were, as we have said, not without adequate support, the legislative

function was performed and the sanction of the statute attached to

violations of the curfew order.  It is unnecessary to consider whether

or to what extent such findings would support orders differing from the

curfew order.



The conviction under the second count is without constitutional

infirmity.  Hence, we have no occasion to review the conviction on the

first count since, as already stated, the sentences on the two counts

are to run concurrently, and conviction on the second is sufficient to

sustain the sentence.  For this reason also, it is unnecessary to

consider the Government's argument that compliance with the order to

report at the Civilian Control Station did not necessarily entail

confinement in a relocation center.



Affirmed. DOUGLAS, J., concurring



MR. JUSTICE DOUGLAS concurring.



While I concur in the result and agree substantially with the opinion of

the Court, I wish to add a few words to indicate what, for me, is the

narrow ground of decision.



After the disastrous bombing of Pearl Harbor, the military had a grave

problem on its hands.  The threat of Japanese invasion of the west coast

was not fanciful, but real.  The presence of many thousands of aliens

and citizens of Japanese ancestry in or near to the key points along

that coastline aroused special concern in those charged with the defense

of the country.  They believed that not only among aliens, but also

among citizens of Japanese ancestry, there were those who would give aid

and comfort to the Japanese invader and act as a fifth column before and

during an invasion.  If the military [320 U.S. 106] were right in their

belief that, among citizens of Japanese ancestry, there was an actual or

incipient fifth column, we were indeed faced with the imminent threat of

a dire emergency.  We must credit the military with as much good faith

in that belief as we would any other public official acting pursuant to

his duties.  We cannot possibly know all the facts which lay behind that

decision.  Some of them may have been as intangible and as imponderable

as the factors which influence personal or business decisions in daily

life.  The point is that we cannot sit in judgment on the military

requirements of that hour.  Where the orders under the present Act have

some relation to "protection against espionage and against sabotage,"

our task is at an end.



Much of the argument assumes that as a matter of policy it might have

been wiser for the military to have dealt with these people on an

individual basis, and through the process of investigation and hearings

separated those who were loyal from those who were not.  But the wisdom

or expediency of the decision which was made is not for us to review. 

Nor are we warranted, where national survival is at stake, in insisting

that those orders should not have been applied to anyone without some

evidence of his disloyalty.  The orders as applied to the petitioner are

not to be tested by the substantial evidence rule.  Peacetime procedures

do not necessarily fit wartime needs.  It is said that, if citizens of

Japanese ancestry were generally disloyal, treatment on a group basis

might be justified.  But there is no difference in power when the number

[320 U.S. 107] of those who are finally shown to be disloyal or suspect

is reduced to a small percent.  The sorting process might indeed be as

time-consuming whether those who were disloyal or suspect constituted

nine or ninety-nine percent.  And the pinch of the order on the loyal

citizens would be as great in any case.  But where the peril is great

and the time is short, temporary treatment on a group basis may be the

only practicable expedient whatever the ultimate percentage of those who

are detained for cause.  Nor should the military be required to wait

until espionage or sabotage becomes effective before it moves.



It is true that we might now say that there was ample time to handle the

problem on the individual, rather than the group, basis.  But military

decisions must be made without the benefit of hindsight.  The orders

must be judged as of the date when the decision to issue them was made. 

To say that the military in such cases should take the time to weed out

the loyal from the others would be to assume that the nation could

afford to have them take the time to do it.  But, as the opinion of the

Court makes clear, speed and dispatch may be of the essence.  Certainly

we cannot say that those charged with the defense of the nation should

have procrastinated until investigations and hearings were completed. 

At that time, further delay might indeed have seemed to be wholly

incompatible with military responsibilities.



Since we cannot override the military judgment which lay behind these

orders, it seems to me necessary to concede that the army had the power

to deal temporarily with these people on a group basis.  Petitioner

therefore was not justified in disobeying the orders.



But I think it important to emphasize that we are dealing here with a

problem of loyalty, not assimilation.  Loyalty is a matter of mind and

of heart, not of race.  That indeed is the history of America. 

Moreover, guilt is personal [320 U.S. 108] under our constitutional

system.  Detention for reasonable cause is one thing.  Detention on

account of ancestry is another.



In this case, the petitioner tendered by a plea in abatement the

question of his loyalty to the United States.  I think that plea was

properly stricken; military measures of defense might be paralyzed if it

were necessary to try out that issue preliminarily.  But a denial of

that opportunity in this case does not necessarily mean that petitioner

could not have had a hearing on that issue in some appropriate

proceeding.  Obedience to the military orders is one thing.  Whether an

individual member of a group must be afforded at some stage an

opportunity to show that, being loyal, he should be reclassified is a

wholly different question.



There are other instances in the law where one must obey an order before

he can attack as erroneous the classification in which he has been

placed.  Thus, it is commonly held that one who is a conscientious

objector has no privilege to defy the Selective Service Act and to

refuse or fail to be inducted.  He must submit to the law.  But that

line of authority holds that, after induction, he may obtain through

habeas corpus a hearing on the legality of his classification by the

draft board.  Whether, in the present situation, that remedy would be

available is one [320 U.S. 109] of the large and important issues

reserved by the present decision.  It has been suggested that an

administrative procedure has been established to relieve against

unwarranted applications of these orders.  Whether, in that event, the

administrative remedy would be the only one available or would have to

be first exhausted is also reserved.  The scope of any relief which

might be afforded -- whether the liberties of an applicant could be

restored only outside the areas in question -- is likewise a distinct

issue.  But if it were plain that no machinery was available whereby the

individual could demonstrate his loyalty as a citizen in order to be

reclassified, questions of a more serious character would be presented. 

The United States, however, takes no such position.  We need go no

further here than to deny the individual the right to defy the law.  It

is sufficient to say that he cannot test in that way the validity of the

orders as applied to him. MURPHY, J., concurring



MR. JUSTICE MURPHY, concurring.



It is not to be doubted that the action taken by the military commander

in pursuance of the authority conferred upon him was taken in complete

good faith and in the firm conviction that it was required by

considerations of public safety and military security.  Neither is it

doubted that the Congress and the Executive, working together, may

generally employ such measures as are necessary and appropriate to

provide for the common defense and to wage war "with all the force

necessary to make it effective."  United States v. Macintosh, 283 U.S.

605, 622.  This includes authority to exercise measures of control over

persons and property  which would not in all cases be permissible in

normal times. [320 U.S. 110]



It does not follow, however, that the broad guaranties of the Bill of

Rights and other provisions of the Constitution protecting essential

liberties are suspended by the mere existence of a state of war.  It has

been frequently stated and recognized by this Court that the war power,

like the other great substantive powers of government, is subject to the

limitations of the Constitution.  See Ex parte Milligan, 4 Wall. 2;

Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 156; Home Building

& Loan Association v. Blaisdell, 290 U.S. 398, 426.  We give great

deference to the judgment of the Congress and of the military

authorities as to what is necessary in the effective prosecution of the

war, but we can never forget that there are constitutional boundaries

which it is our duty to uphold.  It would not be supposed, for instance,

that public elections could be suspended or that the prerogatives of the

courts could be set aside, or that persons not charged with offenses

against the law of war (see Ex parte Quirin, 317 U.S. 1) could be

deprived of due process of law and the benefits of trial by jury, in the

absence of a valid declaration of martial law.  Cf. Ex parte Milligan,

supra.



Distinctions based on color and ancestry are utterly inconsistent with

our traditions and ideals.  They are at variance with the principles for

which we are now waging war.  We cannot close our eyes to the fact that,

for centuries, the Old World has been torn by racial and religious

conflicts and has suffered the worst kind of anguish because of

inequality of treatment for different groups.  There was one law for one

and a different law for another.  Nothing is written more firmly into

our law than the compact of the Plymouth voyagers to have just [320 U.S.

111] and equal laws.  To say that any group cannot be assimilated is to

admit that the great American experiment has failed, that our way of

life has failed when confronted with the normal attachment of certain

groups to the lands of their forefathers.  As a nation, we embrace many

groups, some of them among the oldest settlements in our midst, which

have isolated themselves for religious and cultural reasons.



Today is the first time, so far as I am aware, that we have sustained a

substantial restriction of the personal liberty of citizens of the

United States based upon the accident of race or ancestry.  Under the

curfew order here challenged, no less than 70,000 American citizens have

been placed under a special ban and deprived of their liberty because of

their particular racial inheritance.  In this sense, it bears a

melancholy resemblance to the treatment accorded to members of the

Jewish race in Germany and in other parts of Europe.  The result is the

creation in this country of two classes of citizens for the purposes of

a critical and perilous hour -- to sanction discrimination between

groups of United States citizens on the basis of ancestry.  In my

opinion, this goes to the very brink of constitutional power.



Except under conditions of great emergency, a regulation of this kind

applicable solely to citizens of a particular racial extraction would

not be regarded as in accord with the requirement of due process of law

contained in the Fifth Amendment.  We have consistently held that

attempts to apply regulatory action to particular groups solely on the

basis of racial distinction or classification is not in accordance with

due process of law as prescribed by the Fifth and Fourteenth Amendments.

 Cf. Yick Wo v. Hopkins, 118 U.S. 356, 369; Yu Con Eng v. Trinidad, 271

U.S. 500, 524-528.  See also Boyd v. Frankfort, 117 Ky. 199, 77 S.W.

669; Opinion of the Justices, 207 Mass. [320 U.S. 112] 601, 94 N.E. 558.

 It is true that the Fifth Amendment, unlike the Fourteenth, contains no

guarantee of equal protection of the laws.  Cf. Currin v. Wallace, 306

U.S. 1, 14.  It is also true that even the guaranty of equal protection

of the laws allows a measure of reasonable classification.  It by no

means follows, however, that there may not be discrimination of such an

injurious character in the application of laws as to amount to a denial

of due process of law as that term is used in the Fifth Amendment.  I

think that point is dangerously approached when we have one law for the

majority of our citizens and another for those of a particular racial

heritage.



In view, however, of the critical military situation which prevailed on

the Pacific Coast area in the spring of 1942, and the urgent necessity

of taking prompt and effective action to secure defense installations

and military operations against the risk of sabotage and espionage, the

military authorities should not be required to conform to standards of

regulatory action appropriate to normal times.  Because of the damage

wrought by the Japanese at Pearl Harbor and the availability of new

weapons and new techniques with greater capacity for speed and deception

in offensive operations, the immediate possibility of an attempt at

invasion somewhere along the Pacific Coast had to be reckoned with. 

However desirable such a procedure might have been, the military

authorities could have reasonably concluded at [320 U.S. 113] the time

that determinations as to the loyalty and dependability of individual

members of the large and widely scattered group of persons of Japanese

extraction on the West Coast could not be made without delay that might

have had tragic consequences.  Modern war does not always wait for the

observance of procedural requirements that are considered essential and

appropriate under normal conditions.  Accordingly, I think that the

military arm, confronted with the peril of imminent enemy attack and

acting under the authority conferred by the Congress, made an allowable

judgment at the time the curfew restriction was imposed.  Whether such a

restriction is valid today is another matter.



In voting for affirmance of the judgment, I do not wish to be understood

as intimating that the military authorities in time of war are subject

to no restraints whatsoever, or that they are free to impose any

restrictions they may choose on the rights and liberties of individual

citizens or groups of citizens in those places which may be designated

as "military areas."  While this Court sits, it has the inescapable duty

of seeing that the mandates of the Constitution are obeyed.  That duty

exists in time of war as well as in time of peace, and, in its

performance, we must not forget that few indeed have been the invasions

upon essential liberties which have not been accompanied by pleas of

urgent necessity advanced in good faith by responsible men.  Cf. Mr.

Justice Brandeis concurring in Whitney v. California, 274 U.S. 357, 372.



Nor do I mean to intimate that citizens of a particular racial group

whose freedom may be curtailed within an area threatened with attack

should be generally prevented from leaving the area and going at large

in other areas that are not in danger of attack and where special

precautions are not needed.  Their status as citizens, though subject to

requirements of national security and [320 U.S. 114] military necessity,

should at all times be accorded the fullest consideration and respect. 

When the danger is past, the restrictions imposed on them should be

promptly removed and their freedom of action fully restored. RUTLEDGE,

J., concurring



MR. JUSTICE RUTLEDGE, concurring.



I concur in the Court's opinion, except for the suggestion, if that is

intended (as to which I make no assertion), that the courts have no

power to review any action a military officer may "in his discretion"

find it necessary to take with respect to civilian citizens in military

areas or zones, once it is found that an emergency has created the

conditions requiring or justifying the creation of the area or zone and

the institution of some degree of military control short of suspending

habeas corpus.  Given the generating conditions for exercise of military

authority and recognizing the wide latitude for particular applications

that ordinarily creates, I do not think it is necessary in this case to

decide that there is no action a person in the position of General De

Witt here may take, and which he may regard as necessary to the region's

or the country's safety, which will call judicial power into play.  The

officer, of course, must have wide discretion and room for its

operation.  But it does not follow there may not be bounds beyond which

he cannot go and, if he oversteps them, that the courts may not have

power to protect the civilian citizen.  But, in this case, that question

need not be faced, and I merely add my reservation without indication of

opinion concerning it. Footnotes STONE, J., lead opinion (Footnotes)



1. State Distribution of War Supply and Facility Contracts -- June, 1940

through December, 1941 (issued by Office of Production Management,

Bureau of Research and Statistics, January 18, 1942); ibid. --

Cumulative through February, 1943 (issued by War Production Board,

Statistics Division, April 3, 1943).



2. See "Attack upon Pearl Harbor by Japanese Armed Forces," Report of

the Commission Appointed by the President, dated January 23, 1942,

S.Doc. No. 159, 77th Cong., 2d Sess., pp. 12, 13.



3. Sixteenth Census of the United States, for 1940, Population, Second

Series, Characteristics of the Population (Dept. of Commerce): 

California, pp. 10, 61; Oregon, pp. 10, 50; Washington, pp. 10, 52.  See

also H.R.Rep. No. 2124, 77th Cong., 2d Sess., pp. 91-100.



4. Federal legislation has denied to the Japanese citizenship by

naturalization (R.S.  2169; 8 U.S.C.  703; see Ozawa v. United States,

260 U.S. 178), and the Immigration Act of 1924 excluded them from

admission into the United States.  43 Stat. 161, 8 U.S.C.  213.  State

legislation has denied to alien Japanese the privilege of owning land. 

1 California General Laws (Deering, 1931), Act 261; 5 Oregon Comp.Laws

Ann. (1940),  61-102; 11 Washington Rev.Stat.Ann. (Remington, 1933), 

10581, 10582.  It has also sought to prohibit intermarriage of persons

of Japanese race with Caucasians.  Montana Rev.Codes 1935,  5702. 

Persons of Japanese descent have often been unable to secure

professional or skilled employment except in association with others of

that descent, and sufficient employment opportunities of this character

have not been available.  Mears, Resident Orientals on the American

Pacific Coast (1927), pp. 188, 198-209, 402, 403; H.R.Rep. No. 2124,

77th Cong., 2d Sess., pp. 101-138.



5. Hearings before the Select Committee Investigating National Defense

Migration, House of Representatives, 77th Cong., 2d Sess., pp. 11702,

11393-11394, 11348.



6. H.R.Rep. No. 1911, 77th Cong., 2d Sess., p. 16.



7. Nationality Law of Japan, Article 1 and Article 20,  3, and

Regulations (Ordinance No. 26) of November 17, 1924 -- all printed in

Flournoy and Hudson, Nationality Laws (1929), pp. 382, 384-387.  See

also Foreign Relations of the United States, 1924, vol. 2, pp. 411-413.



8. Statistics released in 1927 by the Consul General of Japan at San

Francisco asserted that over 51,000 of the approximately 63,000

American-born persons of Japanese parentage then in the western part of

the United States held Japanese citizenship.  Mears, Resident Orientals

on the American Pacific Coast, pp. 107-08, 429.  A census conducted

under the auspices of the Japanese government in 1930 asserted that

approximately 47% of American-born persons of Japanese parentage in

California held dual citizenship.  Strong, The Second-Generation

Japanese Problem (1934), p. 142.



9. H.R.Rep. No. 1911, 77th Cong., 2d Sess., p. 17. DOUGLAS, J.,

concurring (Footnotes)



1. Judge Fee stated in United States v. Yasui, 48 F.Supp. 40, 44-45, the

companion case to the present one, The areas and zones outlined in the

proclamations became a theatre of operations, subjected in localities to

attack and all threatened during this period with a full scale invasion.

 The danger at the time this prosecution was instituted was imminent and

immediate.  The difficulty of controlling members of an alien race, many

of whom, although citizens, were disloyal with opportunities of sabotage

and espionage, with invasion imminent, presented a problem requiring for

solution ability and devotion of the highest order.



2. See United States v. Powell, 38 F.Supp. 183; Application of

Greenberg, 39 F.Supp. 13; United States v. Baird, 39 F.Supp. 392;

Micheli v. Paullin, 45 F.Supp. 687; United States v. Embrey, 46 F.Supp.

916; In re Rogers, 47 F.Supp. 265; Ex parte Stewart, 47 F.Supp. 410;

United States v. Smith, 48 F.Supp. 842; Ex parte Robert, 49 F.Supp. 131;

United States v. Grieme, 128 F.2d 811; Fletcher v. United States, 129

F.2d 262; Drumheller v. Berks County Local Board No. 1, 130 F.2d 610,

612.  For cases arising under the Selective Draft Act of 1917, see

United States v. Kinkead, 250 F. 692; Ex parte McDonald, 253 F. 99; Ex

parte Cohen, 254 F. 711; Arbitman v. Woodside, 258 F. 441; Ex parte

Thierit, 268 F. 472, 476.  And see 10 Geo.Wash.L.Rev. 827. MURPHY, J.,

concurring (Footnotes)



1. Schenck v. United States, 249 U.S. 47; Debs v. United States, 249

U.S. 211; United States v. Bethlehem Steel Corp., 315 U.S. 289, 305;

Northern Pac. Ry. Co. v. North Dakota, 250 U.S. 135; Dakota Cent. Tel.

Co. v. South Dakota, 250 U.S. 163; Highland v. Russell Car & Snow-plow

Co., 279 U.S. 253; Selective Draft Law Cases, 245 U.S. 366.



2. For instance, if persons of an accused's race were systematically

excluded from a jury in a federal court, any conviction undoubtedly

would be considered a violation of the requirement of due process of

law, even though the ground commonly stated for setting aside

convictions to obtained in state courts is denial of equal protection of

the laws.  Cf. Glasser v. United States, 315 U.S. 60, with Smith v.

Texas, 311 U.S. 128.

