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In World War II, Executive Order 9066 suspended basic rights of Japanese Americans - even people whose loyalty to the United States was never questioned, though the government feared the group as a whole might contain some spies - and led to a lot of people (>100K) being rounded up and kept at internment camps. Korematsu v. United States ruled this was constitutional.

Today, in the "War on Terror," at least one politician can make surprisingly strong statements about plans for negative treatment against large groups of people (e.g. Muslims) because of concerns that a small minority of them might be radical enough to kill a bunch of people, and [the politician can] remain surprisingly popular.

Supposing such a candidate were elected President, could that President do something like Executive Order 9066 again today?

If not, specifically why not, citing what's changed about the US constitution between WWII and now to prevent that?

Answers that just say "no political leader would try that because it'd be so unpopular" are not satisfactory answers to the question and not consistent with the evidence of what happened before and what is happening in present polls.

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    If the president did such a thing, it would surely be challenged in court, and Korematsu would certainly be overruled. I recently read that Scalia is on the record saying that it was an incorrect decision. No change in the constitution would be necessary. Of course, the executive could also put in place a program that is similar, but with certain details changed so it would pass judicial scrutiny. – phoog Dec 21 '15 at 3:23
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WWII Supreme Court Cases

During WWII, the Supreme Court dealt with three main issues in their cases on Executive Order 9066: curfews, exclusions, and internment of persons with Japanese ancestry.

In the lesser-known Kiyoshi Hirabayashi v. United States case, the court had to determine whether imposing a curfew on those of Japanese descent was valid. The main constitutional issue ended up being the effectiveness of the Fifth Amendment in providing for due process of law in times of war. In the end, the court decided that a curfew was indeed justified.

Following this, the majority of the court found in Korematsu v. United States, that the exclusion of those with Japanese ancestry from certain military zones (in this case, the West coast) was also constitutional. In their decision, they heavily relied upon the Hirabayashi case.

The question of internment of people with Japanese ancestry was not actually decided constitutionally. Another case, a habeas corpus case, Ex parte Endo might have resolved it, but the Court concluded this case in favor of Endo without going to the constitutional level. A day before this decision was announced, the government suspended Executive Order 9066, leaving the question unresolved.

In these cases, Justice Frank Murphy's opinions stand out. In Hirabayashi, he sternly warned of the racism involved, but felt that the curfew was indeed justified. However, in Korematsu, he evidently felt that the exclusion was without basis and dissented, calling the majority opinion "legalization of racism."

Current Law

In theory, these cases still stand. This is because they haven't been explicitly overruled, and the changes to the constitution since Hirabayashi aren't relevant: Amendments XXII and XXV have to do with procedural issues with the office of the President, amendments XXIII, XIV, and XXVI are related to voting rights, and XXVII addresses Congressional salaries. The constitution for the purpose of a similar order is thus unchanged, and so should theoretically be covered under Korematsu & Hirabayashi.

However, its effective status as precedent is shaky. For one, it has been widely condemned, and courts would likely avoid using Korematsu & Hirabayashi if possible, or attempt to make a distinction from them given a slightly different order. Second, the convictions against Korematsu and Hirabayashi were overturned in the 1980s based on evidence being possibly concealed by the government. This was confirmed by the Department of Justice in 2011. However, this is an error of fact, and as such the legal reasoning used would still technically stand as precedent.

Future Challenges

If another such order occurred, it would almost certainly reach the Supreme Court. The Court would then have to adhere to, reconcile with, or overrule Korematsu & Hirabayashi. In Hirabayashi, the following key piece of reasoning was given (and quoted in Korematsu):

Whatever views we may entertain regarding the loyalty to this country of the citizens of Japanese ancestry, we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it.

Regardless of personal beliefs, it is hard to argue the logic behind this particular statement. However, these "prompt and adequate measures" would still have to be weighed against the Fifth Amendment. Additionally, we now have a historical example of what may happen if race-based exclusion were allowed, and this could inform the justices' decision.

A completely different way that such an order could be ruled unconstitutional could be through separation of powers violations. It could be ruled that Congress cannot constitutionally delegate the powers expressed in Executive Order 9066, but this is rare. It was mentioned in Hirabayashi, but the court did not consider this issue, saying that since Congress agreed with the order, this point was moot.

Conclusion

Though the letter of the law suggests that another order like Executive Order 9066 is possible, in practice it would face significant hurdles. Such an order would likely face challenges based on the Fifth Amendment and almost certainly make its way to SCOTUS. Then, it would be up to them to decide.

I'll end with this quote from the late Justice Antonin Scalia:

Well, of course, Korematsu was wrong [...] But you are kidding yourself if you think the same thing will not happen again.

  • Would the reasoning of the longer quote still hold if e.g. "Islamic faith," "Mexican ancestry," or "gender different than that assigned at birth," is substituted in for "Japanese ancestry?" It may be that a Congress or commander-in-chief don't believe they can readily isolate and separately deal with "disloyal members" who they believe exist in one of these populations. That'd be helpful in figuring out if something like Executive Order 9066 could be repeated with other groups today. The last quote seems to contradict "significant hurdles" and indicate that this will (likely) happen again. – WBT May 16 '16 at 18:46
  • @WBT I would argue that the logic could hold, but keeping in mind that these decisions all relied on the fact that the US was at war with Japan. As for that last quote, it was my attempt at leaving things ambiguous, but I see it only confused, so I removed it. – DPenner1 May 16 '16 at 23:25
  • The Scalia quote did help answer the question, it just disagreed with the conclusion you wrote. Thanks for your effort on this answer! – WBT May 17 '16 at 2:18
  • In terms of legal reasoning, a court that wanted to overturn the previous decisions presumably would look at how Brown v. Board of Education contradicted (for all practical purposes) Plessy v. Ferguson. The trick as I understand it, is for SCOTUS to lay out what facts and assumptions have changed since the original ruling, and which mean the same legal reasoning can't apply again. So for Plessy v. Ferguson this was simply that "separate but equal" turned out in practice to be a contradiction in terms and so could no longer be relied on to provide the constitutionally-required equality. – Steve Jessop Feb 1 '17 at 15:30
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Yes, it could, and folks around the new Trump administration are just barely more than a week after the election citing the internment camps as precedent in support of actions against Muslims in the United States. Supreme Court justices may be even be appointed and confirmed in advance of any challenge to a modern version of such an order, so they're on the bench and ready to again affirm its own previous decision.

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