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In the Supreme Court of the United States Nos. 16-1436 and 16-1540 In The Supreme Court of the United States DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., Petitioners, v. INTERNATIONAL REFUGEE ASSISTANCE PROJECT, ET AL., Respondents. DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., Petitioners, v. STATE OF HAWAII, ET AL., Respondents. ON WRITS OF CERTIORARI TO THE UNITED STATES COURTS OF APPEALS FOR THE FOURTH AND NINTH CIRCUITS BRIEF OF KAREN KOREMATSU, JAY HIRABAYASHI, HOLLY YASUI, THE FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY, CIVIL RIGHTS ORGANIZATIONS, AND NATIONAL BAR ASSOCIATIONS OF COLOR AS AMICI CURIAE IN SUPPORT OF RESPONDENTS Robert S. Chang Pratik A. Shah Lorraine K. Bannai Counsel of Record KOREMATSU CENTER FOR AKIN GUMP STRAUSS LAW AND EQUALITY HAUER & FELD LLP Ronald A. Peterson Law 1333 New Hampshire Ave., Clinic NW Seattle University Washington, DC 20036 School of Law (202) 887-4000 1215 East Columbia St. [email protected] Seattle, WA 98122 (206) 398-4025 Counsel for Amici Curiae (Counsel continued on inside cover) Eric K. Yamamoto Martine E. Cicconi* Fred T. Korematsu AKIN GUMP STRAUSS Professor of Law HAUER & FELD LLP and Social Justice 1333 New Hampshire Ave., William S. Richardson NW School of Law, Washington, DC 20036 University of Hawai‘i (202) 887-4000 2515 Dole St. * Licensed to practice in Honolulu, HI 96822 California only and under the (808) 956-6548 direct supervision of a partner of Akin Gump Strauss Hauer & Robert L. Rusky Feld LLP who is an enrolled, 159 Beaver St. active member of the District of San Francisco, CA 94114 Columbia Bar; applicant for (415) 255-7385 admission to the D.C. Bar. Dale Minami Robert A. Johnson Donald K. Tamaki Alice Hsu MINAMI TAMAKI LLP AKIN GUMP STRAUSS 360 Post St. HAUER & FELD LLP 8th Floor One Bryant Park San Franciso, CA 94108 New York, NY 10036 (415) 788-9000 (212) 872-1000 Peter Irons Jessica M. Weisel Director Emeritus, AKIN GUMP STRAUSS EARL WARREN BILL OF HAUER & FELD LLP RIGHTS PROJECT 1999 Avenue of the Stars, University of California, Suite 600 San Diego Los Angeles, CA 90067 8862 Sovereign Rd. (310) 229-1000 San Diego, CA 92123 (530) 310-3903 Rodney L. Kawakami 671 So. Jackson St. Leigh-Ann K. Miyasato Suite 201 3465 Waialae Ave. Seattle, WA 98104 Suite 300A (206) 682-9932 Honolulu, HI 96816 (808) 380-1444 Counsel for Amici Curiae i TABLE OF CONTENTS INTERESTS OF AMICI CURIAE .............................. 1 INTRODUCTION AND SUMMARY OF ARGUMENT ........................................................ 7 ARGUMENT .............................................................. 12 I. THE GOVERNMENT’S CONCEPTION OF PLENARY POWER DERIVES FROM CASES INFECTED WITH RACIST AND XENOPHOBIC PREJUDICES. ............. 12 II. KOREMATSU, HIRABAYASHI, AND YASUI STAND AS A STARK REMINDER OF THE NEED FOR SEARCHING JUDICIAL REVIEW OF GOVERNMENTAL ACTION TARGETING DISFAVORED MINORITIES IN THE NAME OF NATIONAL SECURITY. ........................ 20 CONCLUSION .......................................................... 34 ii TABLE OF AUTHORITIES CASES: Chae Chan Ping v. United States, 130 U.S. 581 (1889) .............................. 8, 13, 14, 15 Fiallo v. Bell, 430 U.S. 787 (1977) .............................................. 13 Fong Yue Ting v. United States, 149 U.S. 698 (1893) ........................................ 14, 15 Harisiades v. Shaughnessy, 342 U.S. 580 (1952) ........................................ 16, 26 Hirabayashi v. United States, 320 U.S. 81 (1943) .........................................passim 828 F.2d 591 (9th Cir. 1987) .......................... 28, 30 627 F. Supp. 1445 (W.D. Wash. 1986) ........... 27, 30 Kerry v. Din, 135 S. Ct. 2128 (2015) .......................................... 18 Kleindienst v. Mandel, 408 U.S. 753 (1972) .............................................. 18 Korematsu v. United States, 323 U.S. 214 (1944) .......................................passim 584 F. Supp. 1406 (N.D. Cal. 1984) ..............passim Landon v. Plasencia, 459 U.S. 21 (1982) ................................................ 17 Reno v. Flores, 507 U.S. 292 (1993) .............................................. 17 iii Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953) ........................................ 16, 17 United States v. Yasui, 48 F. Supp. 40 (D. Or. 1942) ................................ 23 Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) .......................... 9, 18 Yasui v. United States, 320 U.S. 115 (1943) ...................................... 2, 7, 23 Zadvydas v. Davis, 533 U.S. 678 (2001) .............................................. 17 Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189 (2012) ................................................ 9 STATUTES: An Act of March 21, 1942, Pub. L. No. 77- 503, 56 Stat. 173 ................................................... 20 OTHER AUTHORITIES: BREYER, STEPHEN, THE COURT AND THE WORLD: AMERICAN LAW AND THE NEW GLOBAL REALITIES (2015) ..................................... 11 DeWitt, Lieutenant General John L., Final Report: Japanese Evacuation from the West Coast (1942) ................................................. 27 Exec. Order No. 9066, “Authorizing the Secretary of War to Prescribe Military Areas,” 7 Fed. Reg. 1407 (Feb. 19, 1942) ............. 20 iv IRONS, PETER, JUSTICE AT WAR: THE STORY OF THE JAPANESE AMERICAN INTERNMENT CASES (1984) ......................................................... 22 Memorandum from J. Edgar Hoover, Dir. FBI to Francis Biddle, Att’y Gen. (Feb. 2, 1942) ..................................................................... 28 Presidential Proclamation 4417, “An American Promise,” 41 Fed. Reg. 7714 (Feb. 19, 1976) ...................................................... 31 REPORT OF CWRIC, PERSONAL JUSTICE DENIED (The Civil Liberties Public Education Fund & University of Washington Press, 1997) ..................................... 31 Saito, Natsu Taylor, The Enduring Effect of the Chinese Exclusion Cases: The Plenary Power Justification for On-Going Abuses of Human Rights, 10 ASIAN L.J. 13 (2003) ............................................................... 14 Testimony of Minoru Yasui, Nat’l Comm. for Redress, Japanese Am. Citizens League, Comm’n on Wartime Relocation and Internment of Civilians (1981) ............................ 21 U.S. Dep’t of Justice, Confession of Error: The Solicitor General’s Mistakes During the Japanese-American Internment Cases (May 20, 2011) ................................................ 11, 32 In The Supreme Court of the United States Nos. 16-1436 and 16-1540 DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., Petitioners, v. INTERNATIONAL REFUGEE ASSISTANCE PROJECT, ET AL., Respondents. DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., Petitioners, v. STATE OF HAWAII, ET AL., Respondents. ON WRITS OF CERTIORARI TO THE UNITED STATES COURTS OF APPEALS FOR THE FOURTH AND NINTH CIRCUITS BRIEF OF KAREN KOREMATSU, JAY HIRABAYASHI, HOLLY YASUI, THE FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY, CIVIL RIGHTS ORGANIZATIONS, AND NATIONAL BAR ASSOCIATIONS OF COLOR AS AMICI CURIAE IN SUPPORT OF RESPONDENTS INTERESTS OF AMICI CURIAE1 Karen Korematsu, Jay Hirabayashi, and Holly Yasui, the children of Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui, come 1 This brief is filed with the consent of all parties through letters of consent on file with the Clerk. No counsel for any party authored this brief in whole or in part, and no person or entity other than amici curiae made a monetary contribution intended to fund the brief’s preparation or submission. (1) 2 forward as amici curiae because they see the disturbing relevance of this Court’s decisions in their fathers’ infamous cases challenging the mass removal and incarceration of Japanese Americans during World War II to the serious questions raised by Executive Order 13780. Minoru Yasui was a 25-year-old attorney in Portland, Oregon, when, on March 28, 1942, he intentionally defied the government’s first actionable order imposing a curfew on persons of Japanese ancestry in order to bring a test case challenging its constitutionality. See Yasui v. United States, 320 U.S. 115 (1943). Gordon Hirabayashi was a 24-year- old college senior in Seattle, Washington, when he similarly chose to defy the government’s curfew and removal orders on May 16, 1942. See Hirabayashi v. United States, 320 U.S. 81 (1943). Fred Korematsu was a 22-year-old welder in Oakland, California, when, on May 30, 1942, he was arrested for refusing to report for removal. See Korematsu v. United States, 323 U.S. 214 (1944). All three men brought their constitutional challenges to this Court. Deferring to the government’s claim that the orders were justified by military necessity, the Court affirmed their convictions. Our Nation has since recognized that the mass removal and incarceration of Japanese Americans was wrong; the three cases have been widely condemned; and all three men have been recognized with the Presidential Medal of Freedom for their wartime courage and lifetime work advancing civil and human rights. 3 Their children have sought to carry forward their fathers’ legacy, educating the public and, as appropriate, reminding the courts of the harm wrought by governmental actions, carried out in the name of national security, that impact men, women, and children belonging to disfavored minority groups—both the human toll and the danger of sacrificing our country’s fundamental values. Guilt, loyalty, and threat are individual attributes. Courts must be vigilant when these attributes are imputed to entire
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