Ending the Korematsu Era: A View from the Modern War on Terror Cases

Craig Green - Temple University Beasley School of Law

During much of the past decade, government officials have prosecuted a “Global War on Terror” that — they claim — is different from all prior conflicts and is unhinged from ordinary legal limits.  As early as September 2001, however, such claims of novelty ­were accompanied by arguments about history and precedent.  In public speeches and legal briefs, various Bush Administration officials invoked specific events surrounding World War II as authority supporting modern examples of executive detention and military commissions.

Most lawyers at the time were unfamiliar with the government’s proffered precedents.  Dominant legal culture (as partly reflected by case books and legal scholarship) had forgotten not only the case names of Quirin, Yamashita, and Eisentrager, but also the constitutional propositions for which such decisions once stood.  In the late twentieth century, if lawyers considered presidential war power at all, they typically remembered only Youngstown’s doctrinal “zones” concerning political process.1 Prior to September 11, what lawyers overlooked was the risk of unconstitutional abuse when Congress authorizes executive action, thereby putting the President’s authority “at its maximum.”2

I.            Identifying The Korematsu Era

As a doctrinal matter, precedents from World War II were crucial to these issues of presidential excess.  In Quirin and Yamashita, for example, the executive used military commissions to prosecute alleged Nazi saboteurs and a Japanese general.  The Court held that such trials were authorized by Congress and that their lax procedures, political manipulations, and harsh results could not be second-guessed by federal courts.  Likewise, the Court’s post-War decision in Eisentrager declined jurisdiction even to review military trials, regardless of their potential departures from basic norms of fairness or justice.

One case of presidential abuse was exceedingly well known in twentieth-century legal culture, yet its relevance to general questions of presidential power had been significantly curtailed.  This decision is Korematsu, which every twentieth-century law student learned as the “Japanese internment case.”  Korematsu is one of the most excoriated decisions in Supreme Court history.  Yet even today, it is criticized almost exclusively on the basis of virulent racism and the harm caused to massive numbers of American citizens and resident aliens.3  Because the Bush Administration had no intention to detain individuals based explicitly on race, much less to pursue wholesale internment within the American homeland, the government cited Korematsu only to distinguish modern war practice from Korematsu’s repugnant, inapplicable, and allegedly singular episode of American history.

To revisit Korematsu’s history is to paint a different picture.  For the Court in Korematsu and its underappreciated precursor Hirabayashi, 4 the key constitutional issue was not the general constitutional validity of racial classifications, nor of pervasive anti-Japanese animus.  Instead, just as in Quirin, Yamashita, and Eisentrager, the decisive issue for Korematsu at the time was presidential war power.  In March 1942, Congress had authorized the military to apply racist programs of curfew, evacuation, and internment.  The President was responding to undeniably serious threats to national security.  By what authority or expertise could the Court invalidate the judgments of two coordinate political branches working together?

Throughout this group of cases — which I call the “Korematsu Era” based on its best known example — the Court repeatedly declined to interfere with presidential wartime decisions.  In contexts ranging from executive detention to military commissions, the mid-century Court upheld Presidential authority in contexts that now look like serious mistakes, given subsequent historical research and judicial doctrines.   Korematsu and Hirabayashi are again the best known illustrations, as the government there invoked explicitly racist sociological evidence, concealed information about the scope of Japanese threats, and misled the Court with respect to substantial facts.  Yet these cases about Japanese curfews and internment do not stand alone.  Recent historical work has explored embarrassing details concerning the unfairness of General Yamashita’s trials.  And even defenders of presidential power have criticized Quirin, through understatement, as “not [the Supreme] Court’s finest hour.”5 Given the relatively infrequent and episodic nature of wartime litigation, it is no great surprise that Korematsu-era case law dropped out of view for many decades, as the Court had no substantial occasion to confirm, undermine, or consider such precedents.  That changed after 2001.

II.            Overruling the Korematsu Era

The Bush Administration’s legal strategy after September 11 had three components, each of which would ultimately be considered by the Supreme Court.  First, the President declared that the terrorist attacks of 2001 were not ordinary crimes, they were acts of “war.”  Second, under theories of so-called “unitary executive” power, the President claimed that his wartime actions could not be constrained even by contrary federal legislation.  Third, invoking Korematsu-era precedents, governmental lawyers argued that because Congress had implicitly authorized instances of executive detention and military commissions, the Supreme Court could not second-guess those activities.

From 2004 to 2008, the Supreme Court issued a series of technical, narrowly drafted decisions concerning these issues.  The Court largely accepted the President’s characterization of the early twenty-first century as wartime, it largely rejected the theory of unitary executive war power, and it very subtly and gradually rejected precedents from the Korematsu era.  In contrast to Eisentrager, the Court in Rasul recognized federal courts’ jurisdiction to consider the legality of extraterritorial aliens’ detention at Guantanamo.  Yet Rasul was decided purely on statutory grounds rather than constitutional ones, thus leaving formally open the Korematsu-Era’s question of what courts should do if Congress and the President act together.  In contrast to Hirabayashi and Korematsu, the Court in Hamdi required the President to follow more rigorous procedures before detaining even one American citizen for military reasons.  But Hamdi produced no majority opinion; various Justices divided on whether Congress had authorized executive detention at Guantanamo and also on whether the President should have leeway to detain enemy combatants indefinitely within the United States.  In 2006, the Hamdan Court rejected Yamashita’s and Quirin’s conclusion that military commissions could apply government-friendly procedural rules with virtually no judicial oversight.  But Hamdan again invoked only statutory limits on presidential action and thereby ostensibly avoided contradicting any policy that had been approved by both the President and Congress.

In 2008, Boumediene crossed an important doctrinal line, as the Court used constitutional grounds to invalidate Congress’s and the President’s combined effort to deny habeas jurisdiction to Guantanamo detainees.  When viewed alongside Boumediene’s twenty-first-century companions, however, the decision confirmed a deeper and broader doctrinal message.  In a series of cases, on admittedly eclectic technical grounds, the twenty-first-century Court has repeatedly rejected Korematsu-era deference to claims of military necessity.  As Bush Administration lawyers did not grasp, Korematsu was not the only flawed decision about war powers to emerge from World War II, and Korematsu-era arguments about high judicial deference could not be sanitized simply by citing cases that have racially neutral facts and less infamous names.

III.            Will The Korematsu Era Stay Overruled?

The force of legal precedent is only partly a matter of analyzing judicial words and holdings; it is also a matter of culture, interpretation, and reinterpretation.  What is it that makes iconic cases like Marbury and Brown conventional heroes, while other icons like Lochner and Korematsu are conventionally villains?  The very complexity of any answer highlights the ongoing historical process of judicial decisionmaking.  Judges, lawyers, professors, and ultimately law students (who refill those same ranks) are continually required to revisit both the meaning and the value of past precedents.

I have suggested that there were significant consequences for the legal community in having forgotten the historical context of Korematsu and companionate decisions from its “era.”  There are parallel risks that twenty-first-century precedents will be underappreciated.  Wasn’t Rasul “only” a case about federal habeas statutes?  Hamdi a case requiring “not-quite-zero” process to support executive detention?  Hamdan an interpretation of the Uniform Code of Military Justice?  And Boumediene “only” a decision about the Suspension Clause?  One can predict with confidence that future executive branch lawyers may someday try to limit these precedents, thereby resurrecting whatever can be salvaged from the Korematsu era, and arguing once again that Korematsu is a terribly flawed precedent — but one whose singular error was limited “only” to racist wholesale detention.

Nothing can stop this ongoing process of revision and retrenchment, and no one can predict which arguments will prevail in future crises that may involve different factual circumstances.  What can be done is to bear witness to what has happened thus far, in the ongoing hope that such evidence might allow current and future lawyers and judges to be better prepared for future crises.  For anyone who wishes to celebrate the Korematsu era’s end, the time to analyze the recent war-powers cases may be now.  Otherwise, the Court’s subtle language and narrow holdings may allow future generations to deflect recent precedents and revive Korematsu-era principles that twenty-first-century judges have firmly, if quietly, laid to rest.

Acknowledgments

Craig Green is an Associate Professor of Law at Temple University Beasley School of Law.

Copyright © 2011 Northwestern University School of Law.

This Legal Workshop Piece is based on the following: Craig Green, Ending Korematsu, 105 NW. U. L. REV. __ (forthcoming 2011).

  1. In simplest form, Youngstown held that the President and Congress together have more constitutional authority than when the President acts alone or the two branches conflict .
  2. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).
  3. Indeed, vivid language from Korematsu’s dissents highlighted “the ugly abyss of racism,” Korematsu v. United States, 323 U.S. 214, 233 (Murphy, J., dissenting) , and “concentration camp[s]” for United States citizens, id. at 223 (Roberts, J., dissenting).
  4. In Hirabayashi, the Court upheld a racist military curfew applicable to United States citizens of Japanese ancestry.
  5. Hamdi v. Rumsfeld, 542 U.S. 507, 569-72 (2004) (Scalia, J., dissenting).

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