Hirabayashi v. United States

320 U.S. 81 (1943)

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Nature of the Case

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Facts

All persons of Japanese ancestry residing in such an area were to be within their place of residence daily between the hours of 8:00 p. m. and 6:00 a. m. D, 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 in the designated military area between the hours of 8:00 o'clock p. m. and 6:00 a. m. D 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 D'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, D 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. D 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. D was educated in the Washington public schools and at the time of his arrest was a senior in the University of Washington. D had never been in Japan or had any association with Japanese residing there. D admitted his failure to report to the Civil Control Station on May 11 or May 12, 1942, as directed, to register for evacuation from the military area. D was also 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 D was sentenced to imprisonment for a term of three months on each, the sentences to run concurrently. D appealed. The Court of Appeals for the Ninth Circuit certified to questions of law upon which it desired instructions. The Supreme Court ordered that the entire record be certified so that it might proceed to a decision of the matter in controversy in the same manner as if it had been brought by appeal. On December 8, 1941, Congress declared war against Japan. On February 19, 1942, the President promulgated Executive Order No. 9066. 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. By virtue of the authority vested 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. 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.' 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 regions 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. 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. Congress, by the Act of March 21, 1942, 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 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. On March 24, 1942, General DeWitt issued Public Proclamation No. 3. It 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. Civilian Exclusion Order No. 57 of May 10, 1942 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, 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. 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. Ds 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 ancestries.