TOYOSABURO KOREMATSU v. UNITED STATES, 140 F.2d 289

WILBUR, Circuit Judge. Appellant was convicted of, and placed on probation for five years for, the offense of remaining in that portion of Military-Area No. 1, covered by Civilian Exclusion Order No. 34 of the Commanding General, J. L. DeWitt, issued May 3, 1942, in which all persons of Japanese ancestry are excluded from, and not permitted to remain in, the City of San Leandro, County of Alameda, State of California, after 12 o’clock noon, P.W.T., May 9, 1942. The defendant appealed.

The government moved to dismiss the appeal on the ground that the probationary order was not a final 'order, and hence was not appealable. Owing to a diversity of opinion among the Circuit Courts of Appeal, we certified to the Supreme Court the question of whether or not this court had jurisdiction of the appeal from the order placing the appellant on probation prior to sentence. The Supreme Court on the 1st day of June, 1943, answered that question in the affirmative, Korematsu v. United States, 319 U.S. 432, 63 S.Ct. 1124. Consequently the motion to dismiss is denied.

Appellant is a native born citizen of the United States of America of Japanese ancestry and claims that the proclamation violated by him was void. This case was argued with two companion cases, both of which were subsequently certified to, and decided by, the Supreme Court on June 21, 1943, entitled Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, and Yasui v. United States, 320 U.S. 115, 63 S.Ct. 1392, 87 L.Ed. 1793. These decisions involve the portions of the proclamation of General DeWitt imposing curfew restrictions upon Japanese citizens of the United States of Japanese ancestry.

The Supreme Court held the curfew restrictions valid. The Supreme Court did not expressly pass upon the validity of the evacuation order which is involved in the case at bar. However, the Supreme Court held that under the Constitution the government of the United States, in prosecuting a war, has power to do all that is necessary to the successful prosecution of a war although the exercise of those powers temporarily infringe some of the inherent rights and liberties of individual citizens which are recognized and guaranteed by the Constitution.

We are of the opinion that this principle, thus decided, so clearly sustains the validity of the proclamation for evacuation, which .is here involved, that it is not necessary to labor the point. The constitutional questions concerning the authority of Congress and of the President and his subordinate, Lieutenant General DeWitt, and questions of discrimination because of race or ancestry raised by the appellant were also considered and decided by the Supreme Court contrary to contentions of the appellant, and for that reason these questions require no further elaboration by this court. Judgment affirmed.

The Supreme Court, speaking through Chief Justice Stone, in Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 1382, 87 L.Ed. 1774, said, “* * * The war power of the national government is ‘the power to wage war successfully’. See Charles Evans Hughes, War Powers Under the Constitution, 42 A.B.A.Rep. 232, 238. It extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces.

It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injux’y and from the dangers which attend the x-ise, prosecution and progress of war. Prize Cases, [infra]; Miller v. United States, 11 Wall 268, 303-314, 20 L.Ed. 135; Stewart v. Kahn, 11 Wall 493, 506-507, 20 L.Ed. 176; Selective Draft Law Cases (Arver v. United States), 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann.Cas.1918B, 856; McKinley v. United States, 249 U.S. 397, 39 S.Ct. 324, 63 L.Ed. 668; United States v.

Macintosh, 283 U.S. 605, 622, 623, 51 S.Ct. 570, 574, 75 L.Ed. 1302. Since the Constitution commits to the Executive and to Congress the exercise of the war power in all the vicissitudes and conditions of warfare, it has necessarily given them wide scope for the exercise of judgment and discretion in determining the nature and extent of the threatened injury or danger and in the selection of the means for resisting it. Ex parte Quirin, supra, [317 U.S. 1] 28, 29, 63 S.Ct 2, 87 L.Ed. —; cf. Prize Cases, [infra], 2 Black 670, 17 L.Ed. 459; Martin v. Mott, 12 Wheat. 19, 29, 6 L.Ed. 537.

Where, as they did here, the conditions call for the exercise of judgment and discretion and for the choice of means by those branches of the Government on which the Constitution has placed the responsibility of war making, it is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs. “* * * If it was an appropriate exercise of the war power its validity is not impaired because it has restricted the citizen’s liberty.

Like every military control of the population of a dangerous zone in war time, it necessarily involves some infringement of individual liberty, just as does the police establishment of fire lines during a fire, or the confinement of people to their houses during an air raid alarm— neither of which could be thought to be an infringement of constitutional right.” Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 1381, 87 L.Ed. 1774: “* * * The conclusion is inescapable that Congress, by the Act of March 21, 1942 [18 U.S.C.A. § 97a], ratified and confirmed Executive Order No. 9066.

Prize Cases (The Amy Warwick), 2 Black 635, 671, 17 L.Ed. 459; Hamilton v. Dillin, 21 Wall. 73, 96, 97, 22 L.Ed. 528; United States v. Heinszen & Co., 206 U.S. 370, 382-384, 27 S.Ct. 742, 51 L.Ed. 1098, 11 Ann.Cas. 688; Tiaco v. Forbes, 228 U.S. 549, 556, 33 S.Ct. 585, 57 L.Ed. 960; Isbrandtsen-Moller Co. v. United States, 300 U.S. 139, 146-148, 57 S.Ct. 407, 81 L.Ed. 562; Swayne & Hoyt, Ltd., v. United States, 300 U.S. 297, 300-303, 57 S.Ct. 478, 81 L.Ed. 659; Mason Co. v. Tax Comm., 302 U.S. 186, 208, 58 S.Ct. 233, 82 L.Ed. 187.

And so far as it lawfully could, Congress authorized and implemented such curfew orders as the commanding officer should promulgate pursuant to the Executive Order of the President. The question then is not one of Congressional power to delegate to the President the promulgation of the Executive Order, but whether, acting in cooperation, Congress and the Executive have constitutional authority to impose the curfew restriction here complained of.

We must consider also whether, acting together, Congress and the Executive could leave it to the designated military commander to appraise the relevant conditions and on the basis of that appraisal to say whether, under the circumstances, the time and place were appropriate for the promulgation of the curfew order and whether the order itself was an appropriate means of carrying out the Executive Order for the ‘protection against espionage and against sabotage’ to national defense materials, premises and utilities.

Eor reasons presently to be stated, we concluded that it was within the constitutional power of Congress and the executive arm of the Government to prescribe this curfew order for the period under consideration and that its promulgation by the military commander involved no unlawful delegation of legislative power.”