Hirabayashi v. United States
Decided on June 21, 1943; 320 US 81


A. Issues Discussed: Racial discrimination, due process

B. Legal Question Presented:

Was the curfew restriction for all persons of Japanese ancestry residing in military areas, established pursuant to the Act of Congress of March 21, 1942, adopted by the military commander in the exercise of an unconstitutional delegation by Congress of its legislative power, and does the restriction unconstitutionally discriminate between citizens of Japanese ancestry and those of other ancestries?

A. Background:

"Appellant being a person of Japanese ancestry, had on a specified date, contrary to a restriction promulgated by the military commander of the Western Defense Command, Fourth Army, failed to remain in his place of residence in the designated military area between the hours of 8:00 o'clock pm and 6:00 am." 

In addition "the evidence showed that appellant had failed to report to the Civil Control Station on May 11 or May 12, 1942, as directed, to register for evacuation from the military area. He admitted failure to do so, and stated it had at all times been his belief that he would be waiving his rights as an American citizen by so doing. The jury returned a verdict of guilty on both counts and appellant was sentenced to imprisonment for a term of three months on each."

On appeal from the District Court, the Court of Appeals for the Ninth Circuit certified to the U.S. Supreme court questions of law upon which it desired instructions for the decision of the case. The Supreme Court reviewed the case and affirmed the District Court's judgment.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Brief of amici curiae urging reversal was filed for the American Civil Liberties Union.

Messrs. Frank L. Walters, of Seattle, Wash., and Harold Evans, of Philadelphia, PA.

Mr. Charles Fahy, Sol. Gen., of Wahsington, D.C.


"Executive Order No. 9066, promulgated in time of war for the declared purpose of prosecuting the war by protecting national defense resources from sabotage and espionage, and the Act of March 21, 1942, ratifying and confirming the Executive Order, were each an exercise of the power to wage war conferred on the Congress and on the President... by Articles I and II of the Constitution... The war power of the national government is 'the power to wage war successfully.' It extends to every matter and activity so related to war as substantially to affect its conduct and progress...

When the orders were promulgated there was a vast concentration, within Military Areas No. 1 and 2, of installations and facilities for the production of military equipment, especially ships and airplanes. Important army and navy bases were located in California and Washington... Espionage by persons in sympathy with the Japanese Government had been found to have been particularly effective in the surprise attack on Pearl Harbor... Of the 126,000 persons of Japanese descent in the United States, citizens and non-citizens, approximately 112,000 resided in California, Oregon and Washington at the time of the military regulations... Not only did the great majority of such persons reside within the Pacific Coast states but they were concentrated in or near three of the large cities, Seattle, Portland and Los Angeles, all in Military Area No.1.

Distinction between citizens solely because of their ancestry are by their very nature odious to free people whose institutions are founded upon the doctrine of equality... We may assume that these considerations would be controlling here were it not for the fact that the danger of espionage and sabotage, in time of war and of threatened invasion, calls upon the military authorities to scrutinize every relevant fact bearing on the loyalty of populations in the danger areas... Here the aim of Congress and the Executive was the protection against sabotage of war materials and utilities in areas thought to be in danger of Japanese invasion and air attack... We cannot say that these facts and circumstances, considered in the particular war setting, could afford no ground for differentiating citizens of Japanese ancestry from other groups in the United States. The fact alone that attack on our shores was threatened by Japan rather than another enemy power set these citizens apart from others who have no particular associations with Japan.

The Act of March 21, 1942, was an adoption by Congress of the Executive Order and of the Proclamations. The Proclamations themselves followed a standard authorized by the Executive Order - the necessity of protecting military resources in the designated areas against espionage and sabotage... Under the Executive Order the basic facts, determined by the military commander in the light of knowledge then available, were whether that danger existed and whether a curfew order was an appropriate means of minimizing the danger. Since his findings to that effect were as we have said, not without adequate support, the legislative function was performed and the sanction of the statue attached to violations of the curfew order."

The US Supreme Court affirmed the District Court's judgment.

Justice Vote: 0 Pro vs. 9 Con
(Unanimous Decision for Respondent/Appellee)

  • Stone, H. Con (Wrote majority opinion)
  • Douglas, W. Con (Joined majority opinion)
  • Murphy, F. Con (Joined majority opinion)
  • Rutledge, W. Con (Joined majority opinion)
  • Jackson, R. Con (Joined majority opinion)
  • Roberts, O. Con (Joined majority opinion)
  • Frankfurter, F. Con (Joined majority opinion)
  • Black, H. Con (Joined majority opinion)
  • Reed, S. Con (Joined majority opinion)

The ACLU, as amicus curiae, urged reversal of the District Court's Judgment; the Supreme Court affirmed in a 0-9 vote, giving the ACLU an apparent loss.