Ex Parte Endo

Facts

Mitsuye Endo (P), is an American citizen of Japanese ancestry. She was evacuated from Sacramento, California, in 1942, pursuant to certain military orders and was removed to the Tule Lake War Relocation Center located at Newell, California. In July 1942, P filed a petition for a writ of habeas corpus asking that she be discharged and restored to liberty. That petition was denied in July 1943, and an appeal was perfected to the Circuit Court of Appeals in August 1943. On February 19, 1942, the President promulgated Executive Order No. 9066,  which authorized and directed 'the Secretary of War, and the Military Commanders whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas 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 March 18, 1942, the President promulgated Executive Order No. 9102 'in order to provide for the removal from designated areas of persons whose removal is necessary for the interests of national security.' Congress shortly enacted legislation which ratified and confirmed Executive Order No. 9066. P's exclusion was effected by Civilian Exclusion Order No. 52, dated May 7, 1942. It ordered that 'all persons of Japanese ancestry, both alien and non-alien' be excluded from Sacramento, California, beginning at noon on May 16, 1942. P was evacuated to the Sacramento Assembly Center on May 15, 1942, and was transferred from there to the Tule Lake Relocation Center on June 19, 1942. On May 19, 1942, General De Witt promulgated Civilian Restrictive Order No. 1 and on June 27, 1942, Public Proclamation No. 8. These prohibited evacuees from leaving Assembly Centers or Relocation Centers except pursuant to an authorization from General De Witt's headquarters. The War Relocation Authority was given control over the ingress and egress of evacuees from the Relocation Centers where P was confined. Application for leave clearance is required. An investigation of the applicant is made for the purpose of ascertaining 'the probable effect upon the war program and upon the public peace and security of issuing indefinite leave' to the applicant. The grant of leave clearance does not authorize departure from the Relocation Center. Application for indefinite leave must also be made. Indefinite leave may be granted under 14 specified conditions. It may be granted (1) where the applicant proposes to accept an employment offer or an offer of support that has been investigated and approved by the Authority; or (2) where the applicant does not intend to work but has 'adequate financial resources to take care of himself' and a Relocation Officer has investigated and approved 'public sentiment at his proposed destination,' or (3) where the applicant has made arrangements to live at a hotel or in a private home approved by a Relocation Officer while arranging for employment; or (4) where the applicant proposes to accept employment by a federal or local governmental agency; or (5) where the applicant is going to live with designated classes of relatives. Even if an applicant meets those requirements, no leave will issue when the proposed place of residence or employment is within a locality where it has been ascertained that 'community sentiment is unfavorable' or when the applicant plans to go to an area which has been closed by the Authority to the issuance of indefinite leave. P made application for leave clearance on February 19, 1943. Leave clearance was granted her on August 16, 1943. P made no application for indefinite leave. P alleges that she is a loyal and law-abiding citizen of the United States, that no charge has been made against her, that she is being unlawfully detained, and that she is confined in the Relocation Center under armed guard and held there against her will. D concedes that P is a loyal and law-abiding citizen. D concedes that it is beyond the power of the War Relocation Authority to detain citizens against whom no charges of disloyalty or subversiveness have been made for a period longer than that necessary to separate the loyal from the disloyal and to provide the necessary guidance for relocation. D contends that the evacuation program necessarily and ultimately developed into one of complete Federal supervision. This was due primarily to the fact that the interior states would not accept an uncontrolled Japanese migration. Accordingly, D undertook to care for the basic needs of these people in the Relocation Centers, to promote as rapidly as possible the permanent resettlement of as many as possible in normal communities, and to provide indefinitely for those left at the Relocation Centers. An effort was made to segregate the loyal evacuees from the others. The leave program which we have discussed was put into operation and the resettlement program commenced. It is conceded that P's detention pending compliance with the leave regulations is not directly connected with the prevention of espionage and sabotage. D argues that Executive Order No. 9102 confers power to make regulations necessary and proper for controlling situations created by the exercise of the powers expressly conferred for protection against espionage and sabotage. The leave regulations are said to fall within that category.

Issues

Rule of Law

Holding and Decision

Legal Analysis

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