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Amicus Briefs No. 17-965 In The Supreme Court of the United States DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., Petitioners, v. HAWAII, ET AL., Respondents. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 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 Martine E. Cicconi LAW AND EQUALITY AKIN GUMP STRAUSS Ronald A. Peterson Law HAUER & FELD LLP Clinic 1333 New Hampshire Ave., Seattle University NW School of Law Washington, DC 20036 1215 East Columbia St. (202) 887-4000 Seattle, WA 98122 [email protected] (206) 398-4025 Counsel for Amici Curiae (Counsel continued on inside cover) Eric K. Yamamoto Robert A. Johnson Fred T. Korematsu Alice Hsu Professor of Law AKIN GUMP STRAUSS and Social Justice HAUER & FELD LLP William S. Richardson One Bryant Park School of Law, New York, NY 10036 University of Hawai‘i (212) 872-1000 2515 Dole St. Honolulu, HI 96822 Jessica M. Weisel (808) 956-6548 AKIN GUMP STRAUSS HAUER & FELD LLP Robert L. Rusky 1999 Avenue of the Stars, 159 Beaver St. Suite 600 San Francisco, CA 94114 Los Angeles, CA 90067 (415) 255-7385 (310) 229-1000 Dale Minami Rodney L. Kawakami Donald K. Tamaki 671 So. Jackson St. MINAMI TAMAKI LLP Suite 201 360 Post St. Seattle, WA 98104 8th Floor (206) 682-9932 San Franciso, CA 94108 (415) 788-9000 Peter Irons Director Emeritus, EARL WARREN BILL OF RIGHTS PROJECT University of California, San Diego 8862 Sovereign Rd. San Diego, CA 92123 (530) 310-3903 Leigh-Ann K. Miyasato 3465 Waialae Ave. Suite 300A 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 .............................................................. 13 I. THE GOVERNMENT’S CONCEPTION OF PLENARY POWER DERIVES FROM CASES INFECTED WITH RACIST AND XENOPHOBIC PREJUDICES. ............. 13 II. KOREMATSU, HIRABAYASHI, AND YASUI STAND AS STARK REMINDERS OF THE NEED FOR SEARCHING JUDICIAL REVIEW WHEN THE GOVERNMENT TARGETS DISFAVORED MINORITIES IN THE NAME OF NATIONAL SECURITY. ........................ 20 III. THE GOVERNMENT’S LITIGATION STRATEGY IN THIS CASE DEMANDS THIS COURT’S VIGILANCE ............................................ 33 CONCLUSION .......................................................... 40 ii TABLE OF AUTHORITIES CASES: Chae Chan Ping v. United States, 130 U.S. 581 (1889) .................................... 8, 14, 15 Fiallo v. Bell, 430 U.S. 787 (1977) .............................................. 13 Fong Yue Ting v. United States, 149 U.S. 698 (1893) ........................................ 15, 16 Harisiades v. Shaughnessy, 342 U.S. 580 (1952) .............................. 9, 16, 17, 27 Hirabayashi v. United States, 320 U.S. 81 (1943) .........................................passim 627 F. Supp. 1445 (W.D. Wash. 1986) ........... 28, 31 828 F.2d 591 (9th Cir. 1987) .................... 28, 29, 30 Kerry v. Din, 135 S. Ct. 2128 (2015) .................................... 18, 19 Kleindienst v. Mandel, 408 U.S. 753 (1972) ........................................ 19, 34 Korematsu v. United States, 323 U.S. 214 (1944) ......................................passim 584 F. Supp. 1406 (N.D. Cal. 1984) ... 12, 29, 30, 31 Landon v. Plasencia, 459 U.S. 21 (1982) ................................................ 18 Reno v. Flores, 507 U.S. 292 (1993) ........................................ 17, 18 iii Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953) .............................................. 17 United States v. Yasui, 48 F. Supp. 40 (D. Or. 1942) ................................ 24 Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) .............. 9, 18, 19, 20 Yasui v. United States, 320 U.S. 115 (1943) .......................................... 7, 24 Zadvydas v. Davis, 533 U.S. 678 (2001) .............................................. 18 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 ................................................... 21 OTHER AUTHORITIES: Acting Secretary for Intelligence and Analysis, Dep’t of Homeland Security, Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United States (Feb. 2017) ..................................... 37 BREYER, STEPHEN, THE COURT AND THE WORLD: AMERICAN LAW AND THE NEW GLOBAL REALITIES (2015) ..................................... 12 iv DeWitt, Lieutenant General John L., Final Report: Japanese Evacuation from the West Coast (1942) ................................................. 28 Exec. Order No. 9066, “Authorizing the Secretary of War to Prescribe Military Areas,” 7 Fed. Reg. 1407 (Feb. 19, 1942) ............. 21 IRONS, PETER, JUSTICE AT WAR: THE STORY OF THE JAPANESE AMERICAN INTERNMENT CASES (1984) ................................................... 22, 27 Memorandum from J. Edgar Hoover, Dir. FBI to Francis Biddle, Att’y Gen. (Feb. 2, 1942) ..................................................................... 29 Proclamation 4417, “An American Promise,” 41 Fed. Reg. 7714 (Feb. 19, 1976) ........................ 32 Proclamation 9645, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats,” 82 Fed. Reg. 45,161 (Sept. 27, 2017) ................................................................ 8, 35 REPORT OF CWRIC, PERSONAL JUSTICE DENIED (The Civil Liberties Public Education Fund & University of Washington Press, 1997) ..................................... 32 v 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) ............................. 22 U.S. Dep’t of Justice, Confession of Error: The Solicitor General’s Mistakes During the Japanese-American Internment Cases (May 20, 2011) ........................................... 33 In The Supreme Court of the United States No. 17-965 DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., Petitioners, v. HAWAII, ET AL., Respondents. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 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 forward as amici curiae because they see the disturbing relevance of this Court’s decisions in their fathers’ 1 This brief is filed with the written consent of all parties. 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 infamous cases challenging the mass removal and incarceration of Japanese Americans during World War II to the serious questions raised by Presidential Proclamation No. 9645. 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 challenge the order’s constitutionality. Gordon Hirabayashi was a 24- year-old college senior in Seattle, Washington, when, on May 16, 1942, he similarly chose to defy the government’s curfew and removal orders. 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. 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. Their children have sought to carry forward their fathers’ legacy by educating the public and, as appropriate, reminding the courts of the human toll and constitutional harms wrought by governmental actions, carried out in the name of national security, 3 that impact men, women, and children belonging to disfavored minority groups. Guilt, loyalty, and threat are individual attributes. Courts must be vigilant when these attributes are imputed to entire racial, religious, and/or ethnic groups. The Hirabayashi, Yasui, and Korematsu cases stand as important reminders of the need for courts—and especially this Court—to fulfill their essential role in our democracy by checking unfounded exercises of executive power. The Korematsu, Hirabayashi, and Yasui families are proud to stand with the following public interest organizations:
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