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Analyzing Executive Order 9066 and Korematsu

By Jane Li (The Blake School)

Federal Constitutional Structure

Background of the Executive Order


As a part of the executive power bestowed by the constitution, the President has the authority to enforce legislative statutes, treaties, and establish or modify the practices of administrative agencies. This power encompasses the ability to issue an Executive Order, a directive that manages the operations of the government. Although some scholars have suggested that the necessity of such orders in an urgent circumstance can override constitutional protections, an Executive Order must not violate the Constitution and no exceptions should be made, and it is essential that the President does not overreach his authority in any form.


Beginning with the background of executive orders, they are not explicitly mentioned in the Constitution. But although they aren’t defined, this power is implied under the grant of executive power, as understood  by the Presidents, beginning with Washington. The Executive Order came into being when President George Washington ordered on June 8, 1798 that the Secretary of State provide “a clear account of the Department at the head of which you have been, as may be sufficient … to impress me with a full, precise and distinct general idea of the United States.’” [1] Washington’s reasoning behind this order was straightforward: he did not have staff to aid him in running the nation’s affairs, and determined the order necessary to make it “much easier to commence the administration, upon a well-adjusted system, built on tenable grounds, than to correct errors or alter inconveniences after they shall have been confirmed by habit.” [2] That order established the First Cabinet, and was the root of the many other orders issued by the early presidents and the basis of the Executive Orders which the following Presidents would issue. [3] These orders have been of immense importance, some even having recognition as “landmark moments in American history.” [4]


When issuing an executive order, the President must follow the rules laid down by Congress in its delegations of authority, stating the current circumstances and conditions that require such an order. With excessively broad leeway to govern as he pleased, the President would become a tyrant with no checks to obstruct him. This power is further checked by Congress’ ability to overturn an Executive Order in two different ways: by either passing a law to invalidate the order, or by withholding necessary funding to carry out the order and its mechanisms. As Congress has the final authority on the matter, there is a strong protection against Executive Orders coming to violate the Constitution.


Executive Order 9066 and Japanese Internment


Although the principal focus of Executive Orders in the past has been to regulate “routine administrative matters and the internal operations of federal agencies,” some executive orders have had far broader effects. [5] During the New Deal era, President Roosevelt issued perhaps some of the most sweeping executive orders in history. Among them were Executive Order 1933, which was issued during the Great Depression and established the Civil Works Administration to create roughly 4 million government jobs, and Executive Order 1934 which established the Rural Electrification Administration to provide electricity to rural and undeveloped areas of the country. Nevertheless, the most impactful and controversial order issued by FDR – and perhaps the most controversial in US history – was Executive Order 9066, issued to permit Japanese internment following the attack on Pearl Harbor.


In the wake of the Pearl Harbor attack, Roosevelt signed Executive Order 9066 to remove any Japanese spies, as the government and the public had great fear that spies would infiltrate their cities, homes, and businesses. [6] Contributing to that fear was racism and xenophobia against non-white citizens, particularly Japanese Americans. Since the attack, Japanese Americans became scapegoats, and the public’s fear and anger was directed at them. Emotions grew as a result of long-standing racial prejudices, rumors, and accusations which long predated the attacks. “President Roosevelt and many of his military advisers had long worried about the loyalty of Japanese Americans, and so on the day of the attack, the FBI and local police began raiding homes to detain suspicious Japanese Americans, along with smaller numbers of German and Italian ‘aliens.’” [7] These tendencies worsened in the coming weeks as the suspicion, fear, and anger of the public increased. “West Coast newspapers, military leaders, and political figures claimed there was no way to distinguish loyal and disloyal Japanese Americans.” [8] During this period, Roosevelt began to consider taking action via his executive power. The Justice Department had already raised questions about the necessity of such action beforehand, but it was the President’s military advisers who “recommended barring persons of Japanese descent, including American citizens, from the West Coast as a safeguard against espionage and sabotage. [And so] in the face of political, military, and public pressure, Roosevelt approved the military’s proposal.” [9]


Under Executive Order 9066, the military was granted authority to “exclude ‘any or all persons’ from areas of the United States designated as ‘military areas’, and although the order did not identify any particular group, it was designed to remove—and eventually to incarcerate—Japanese aliens and American citizens of Japanese descent.” [10] Japanese Americans were forcibly moved further inland and required to leave their lives, homes, and businesses. They were incorrectly deemed a threat to national security while, in actuality, the majority of the public, the government, and Roosevelt supported the order because of racial prejudice. 

Following their removal from the West Coast, Japanese Americans were moved to ‘relocation centers’ further inland, in desolate places such as Death Valley. The internment camps were surrounded by barbed-wire fences and patrolled by armed guards with instructions to shoot anyone who tried to leave. The camps had tar-papered, army style barracks that were uninsulated and only contained cots and coal-burning stoves. Families had to share the barrack with three or four other families, and each family carried with them their sparse possessions. These camps had bathroom and laundry facilities, but hot water was often limited. “Persons who resisted were sent to a special camp at Tule Lake, California, where dissidents were housed.” [11] Persons who tried to leave would be shot to death.


Executive Order 9066 deprived Japanese Americans from equal protection, stripped them of their civil rights, and violated not only the 5th amendment, which states that “no person shall be deprived of life, liberty or property without due process of law,” but the 14th amendment as well, which granted citizenships to “all persons born or naturalized in the United States…any state [shall not] deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Executive Order 9066 further violated the privilege of the writ of Habeas Corpus as guaranteed in the Constitution as well, a principle that typically gives a person a right to contest unlawful detention or imprisonment before a court, so that the court may determine if the detention is lawful and if the person must be released. This protection was violated, as the Japanese Americans had no right to contest their detention via writ of Habeas Corpus because Congress argued that the Japanese Americans were a threat to the United States and suspended the privilege. Congress substantiated this by citing Article 1, Section 9 of the Constitution, which states that “the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” [13] This was used to justify suspension of the writ of habeas corpus for the safety of the public, one of many factors contributing to Japanese American Internment. 

Although Congress had a duty to check Roosevelt’s Executive Order, it never challenged it. In fact, hardly anyone at all challenged Roosevelt’s Executive Order 9066. In considering why such little resistance was faced, public support is a key factor. The public, having electoral power at the ballot box, can sow doubt in the President’s mind through their disagreement, or can fortify his decision by supporting and advocating for the order. However,  there were few who opposed Executive Order 9066; racism and the fear of Japanese spies brought with it significant public support. As far as organized opposition to internment, it comprised primarily the work of progressive churches, protests organized by the American Friends Service Committee, and a petition to rescind the order organized by the Socialist Party under Norman Thomas. But “[even though] the petition was signed by some 200 intellectuals and progressives, including novelist Pearl S. Buck, W.E.B. DuBois and theologian Reinhold Niebuhr, [it] had no impact” and neither did the other efforts. [14]


Only in 1988, some 40 years following Japanese internment, did the general public change sentiments and come to the understanding that President Roosevelt’s actions were unconstitutional. As a result of this shift in public opinion, “Congress passed and President Reagan signed Public Law 100-383 – the Civil Liberties Act of 1988–that acknowledged the injustice of ‘internment,’ apologized for it, and provided a $20,000 cash payment” as reparations to any surviving persons who had previously been detained in the camps. [15]


Korematsu and Judicial Review of EO 9066


Judicial review is the most important means to protect the constitutional rights of Americans under the checks and balances system, and for many citizens it provides a last resort against tyranny. Despite the serious constitutional problems with Executive Order 9066, judicial review failed to stop internment or enjoin the order. The most prominent of these matters was the case of Fred Korematsu, a Japanese American man who had been interned under the order. Korematsu was a 23 year old Japanese-American citizen who did not comply with the order to leave his home and job, despite the fact that his parents already left their home and business in preparation for reporting to a camp. Korematsu planned to stay behind, going as far as having plastic surgery on his eyes to alter his appearance and changing his name to Clyde Sarah and that he was of Spanish and Hawaiian descent. [16] Korematsu was arrested by the FBI on May 30, 1942, because he failed to report to a relocation center. “While waiting in jail, he [allowed] the American Civil Liberties Union to represent him and make his case a test case to challenge the constitutionality of the government’s order.” [17] Korematsu was then tried in a federal court in San Francisco, and was convicted of violating military orders issued under Executive Order 9066 and given five years on probation in an Assembly Center in San Bruno, California. [18]

Later, Korematsu’s case was eventually granted a writ of certiorari from the Supreme Court, where Korematsu’s attorneys argued that Executive Order 9066 violated the Fifth Amendment by unconstitutionally depriving him of liberty without due process. Notwithstanding their arguments, Korematsu lost on appeal in a split 6-3 ruling that “Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities … decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily.” [19] Writing for the majority, Justice Hugo Black explained that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect [and to be scrutinized carefully]…Pressing public necessity may sometimes justify the existence of such restrictions, [but] racial antagonism never can.” [20] Although Justice Black’s comments regarding the impermissibility of racial discrimination were correct, his opinion essentially argued that exceptions can be made to constitutional rights with the issuance of an Executive Order in emergency circumstances. 

However, no exceptions should exist as Justice Black had suggested; Executive Orders must never violate the Constitution under any circumstance. As Justice Robert Jackson argued in dissent, “the existence of a military power resting on force, so vagrant, so centralized, so necessarily heedless of the individual, is an inherent threat to liberty.” [21] The courts must continue to defend the principle that constitutional rights are inalienable and must never have exceptions, and the other branches of government must follow accordingly. If these rights are not zealously protected and fought for, the grave infringement made by President Roosevelt will find itself repeated despite the checks and balances structure created by our founding fathers to protect the nation and its people.


40 years later in 1983, a legal team working pro bono reopened the case with new evidence indicating misconduct that “the government’s legal team had intentionally suppressed or destroyed evidence from government intelligence agencies reporting that Japanese Americans posed no military threat to the U.S.” [22] The trial commenced at the same San Francisco courthouse where Korematsu had been convicted years prior. Although the district court’s ruling cleared Korematsu’s name, the Supreme Court’s decision at that time still stood. It wasn’t until 2018 that the Korematsu v. United States decision was finally overturned in 2018, when Chief Justice Roberts declared that the Korematsu ruling “has no place in law under the Constitution.” [23]




Although the U.S. was under attack and faced significant national security threats following the Pearl Harbor bombing, President Roosevelt had no right to violate the right to liberty enshrined in the Constitution by means of Japanese internment through Executive Order 9066. Similarly, Congress had no justification to suspend the writ of Habeas Corpus from being used by the Japanese Americans in an act of ‘defense’ for the country. This detention was not a ‘military necessity,’ but was rather a result of rising discontentment against Japanese American citizens. Contrary to the ruling made by Justice Black, no military necessity may justify infringement upon the Constitution. As Justice Jackson’s dissent made clear, while the security concerns faced were serious, not even world war was adequate to violate a person’s civil liberties.

[1] Writings, XXX, letter to the Acting Secretary for Foreign Affairs (June 8, 1789).

[2] Kenneth, Executive Orders: George Washington’s Presidency, LIVEJOURNAL, Feb. 27, 2021,

[3] The original first cabinet only had four members, as contrasting with the 16 we have today. The original cabinet positions were: Attorney General, Secretary of State, Secretary of War, and Secretary of Treasury.

[4] National Constitution Center, Executive Orders 101: What are they and how do Presidents use them? Jan. 23, 2017,

[6] The attack on Pearl Harbor was an attack by Japan, led by Admiral Isoruku Yamamoto. Through skilled military planning, Japan secretly attacked on the morning of December 7, 1941. The attack caught the completely unprepared U.S. forces off guard, and in less than ninety minutes, Japanese planes destroyed or damaged 19 US warships and 300 aircraft, and killed over 2,400 US servicemen.

[8] Id.

[9] Id.

[10] Id.

[11] National Archives, Japanese-American Incarceration During World War II,

[12] U.S. CONST. AMD. V; XIV.

[13] U.S. CONST. ART. 1, §. 9.

[14] Japanese American Internment: Three Key Questions, supra.

[15] Japanese-American Incarceration During World War II, supra.

[17] Id.

[18] Id.

[19] 323 U.S. 214, 223 (1944).

[20] Id., 216.

[21]  Id., at 248 (Jackson, J., dissenting).

[22] Facts and Case Summary - Korematsu v. US, supra.

[23] Trump v. Hawaii, 585 U.S. ___ (2018) (slip. op. at 38), citing Korematsu at 248 (Jackson, J., dissenting).

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