“I learn[ed] a lot about what it means to feel despised, to be hated, to feel ashamed of who I was [during the internment].” –Mary Matsuda Gruenewald, a Japanese-American woman who, at the age of 16, was put into the Minidoka Internment Camp in Idaho along with her family.
“When they start targeting us, it’s taking away that freedom that my parents came here for — it’s scary to think that the nation that I love, that this President is pushing me away, that we’re going to be targeted as Muslims.”—15-year old Amnah Khan, the daughter of immigrants from Pakistan.
It’s been 75 years since President Franklin D. Roosevelt issued executive order 9066 which led to the internment of all Japanese Americans on the West Coast following the Japanese attack on Pearl Harbor on December 7, 1941. It is hard to imagine our country ever taking such drastic action against its own citizens even in the name of national security. Yet, President Donald J. Trump’s travel ban shares similarities to Roosevelt’s executive order 9066.
During World War II, there were several Supreme Court cases, all of them aiming to justify Roosevelt’s executive order.
In Hirabayashi vs. United States (1943), the Supreme Court held that curfews against a minority group were constitutional when the United States was at war with the minority group’s country of origin. This drastic action, it was argued, was needed to protect the nation.
The case began when Gordon Hirabayashi, an American sociologist, became one of three people to defy internment when he was accused of violating the curfew. He turned himself in to the FBI office in Seattle, Washington, and spent several months in jail. Although at first he considered accepting internment, he was able to stand up against it with the help of the American Civil Liberties Union.
In a more sweeping decision, the Supreme Court, in Korematsu vs. United States (1944) upheld the internment of people of Japanese descent, regardless of citizenship—about 120,000 people. The Supreme Court declared that "all persons of Japanese ancestry, both alien and non-alien" should be detained. The government quickly set up camps to hold these individuals.
Going against the order, Fred Korematsu, a Japanese American, refused to leave his home in San Leandro, California. After being convicted, he appealed and his case reached the Supreme Court in 1944.
Writing for the majority, Justice Black wrote, “Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when, under conditions of modern warfare, our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.”
After enormous hardship to Japanese Americans in camps, in the Ex parte Endo (1944), the Justices ruled that the U.S. government could not continue to intern a citizen who was loyal to the United States. The Court wrote, “Loyalty is a matter of the heart and mind not of race, creed or color.” As a result of this decision, many of the Japanese Americans in internment camps pledged their loyalty to the United States government, gained freedom and joined the war effort.
Since becoming the 45th president of the United States, President Trump has instituted several executive orders to make the changes that he promised on the campaign trail, namely to protect the country from terrorist attacks. In January 2017, President Trump issued a travel ban on refugees and all persons from seven countries in the Middle East. In March, he modified the ban to exclude Iraq.
President Trump’s first travel ban was immediately challenged by the State of Washington on the grounds that it violates the U.S Constitution. Specifically, Washington State Attorney General Bob Ferguson wrote, “In my lawsuit, I argue that the Executive Order violates the U.S. Constitution’s guarantee of Equal Protection and the First Amendment’s Establishment Clause, infringes on individuals’ constitutional right to Due Process and contravenes the federal Immigration & Nationality Act.”
Ferguson prevailed when on February 3, 2017, Judge James Robart granted Washington State’s request for a Temporary Restraining Order (TRO). On February 9, a three judge panel of the U.S. Court of Appeals for the Ninth Circuit upheld the TRO.
While President Trump has not expressed interest in detaining Muslim Americans, he instituted his travel ban as a way to combat terrorism. In addition to public outrage over what many believe to be an anti-Muslim order, the major flaw in Trump’s order is that it does not cover any of the countries that the 9/11 terrorists are from. And, there are no known terror attacks in the U.S. by citizens of the seven countries named in the order.
The decision to put Japanese Americans into camps is now viewed as racist by many Americans and in 1993, President Bill Clinton issued an apology to Japanese Americans. Yet, during World War II, it seemed as though matters of national security took precedence over the rights of individuals. The Supreme Court recognized the need to re-balance the rights of individuals when national security interests could not be proven more important.
Seventy-five years after Hirabayashi, Korematsu and Endo, the United States constitution is once again being tested as President Trump’s travel ban winds its way through the court system.
Ultimately, while we can look back at the precedents set by these prior legal cases, the United States will always be a country that tries to walk the fine line between individual rights and national security. It is up to today’s judges to grapple with the complexity of these issues which will likely continue to be tested by terrorist attacks on our country and our belief that “all men are created equal.”