Thursday, April 26, 2018

From the Archives: A Win for National Security

Editors' Note: Sounds like the whiners who dared to question President U Bum's third iteration of his Muslim ban had a tough day at the Supreme Court yesterday, where the Republican majority seemed to express deep concern over second guessing Executive actions supposedly intended to protect national security.  We recall another day at the Supreme Court when those concerns also carried the day, as described in this page 37 article from the October 13, 1944 edition.

By Scott V. Sandford
Justice Correspondent

WASHINGTON, D.C. – Based on the questioning from the Supreme Court at today's argument, it appears that the Court is ready to uphold the expulsion of American citizens of Japanese ancestry from the Western third of the country where they had lived peaceably for generations.

The Court appeared to accept the argument of young Herb Weschsler, arguing the cause for the United States, that it had no business second-guessing national security decisions made by the President in wartime.

Wechsler told the court that the Executive Branch had concluded in the months after Pearl Harbor that removing American citizens of Japanese ancestry from their homes was justified by the exigencies of war, on the theory that the Japanese Army might land in California at any moment and that they might be aided by American citizens of Japanese ancestry.

“No court has the power to countermand the decisions of the President to protect the United States against Jap invasion,” Wechsler told the court.  “If you conclude that the President cannot relocate Japs to protect America, what neutral principle of jurisprudence would prevent them from suing the President to prevent the Air Corps from bombing Japan?” Wechsler asked, presumably rhetorically.

Justice Stone appeared to be swayed by his former pupil's arguments, asking Korematsu's lawyers: “Are you telling me that this Court is better equipped than the President to determine what must be done to keep Americans safe from the Jap menace in time of war?”

When Korematsu's attorney attempted to respond by noting that Korematsu was a loyal American citizen, Justice Stone cut him off, saying, “How are we supposed to know which Japs are loyal and which aren't?  They all look alike!”

Nothing unconstitutional here, said Herb Wechsler
Justice Douglas chimed in: “Isn't the President's power to wage war, like his power to protect our country from aliens, absolute?  Are you saying that President Franklin D. Roosevelt is lying to the American people about the Jap menace?”

Korematsu's counsel admitted that while President Roosevelt was a man of integrity, a future President might be a bigoted crooked ignorant stooge blackmailed by foreign powers and interested only in glory and in enriching himself and his family in office.

“That's preposterous!” responded a clearly exasperated Felix Frankfurter.  “There's no place for such far-fetched hypotheticals in this court,” said the former Harvard Law Professor and close ally of Roosevelt.

Frankfurter then asked, “What if the FBI had information that a group of Jap citizens was spying on the United States?  Are you saying we are powerless to detain them?”

Korematsu's attorney said that individuals who have been shown to be disloyal could be subjected to arrest, but that was different from expelling hundreds of thousands of men, women, and children whose loyalty was not in question merely because they were of Japanese ancestry.

A more skeptical Justice Robert Jackson asked if the Court could take into account the considerable evidence of anti-Japanese bigotry in determining whether the exclusion order was based on unconstitutional discrimination.

“Absolutely not, ”  Wechsler replied. “Anything other than what the Executive Branch said in making its formal decision is meaningless and irrelevant and would require a clearly inappropriate inquiry into the Presidential decision-making process.”

But with American boys fighting and dying every day in the Philippines it did not appear that the Supreme Court was inclined to cut much slack to Tojo's relatives who managed to sneak into the United States.

On rebuttal Wecshler delivered what many Court observers was the coup de grace: “If the Executive does not have the power to exclude Japs from war zones, how can the Executive prevent Japanese agents from immigrating to the United States to continue their campaign of terror and subversion?”

Public opinion appeared to be squarely on the side of President Roosevelt.  “If you say that the Nips can live wherever they want, the next thing you'll be telling me is that I have to rent my apartments to them,” said Queens slumlord Fred C. Trumpf.

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