Ex Parte Mitsuye Endo
Decided on Dec. 18, 1944; 323 US 283


A. Issues Discussed: Racial discrimination, due process

B. Legal Question Presented:

Do the Act of March 21, 1942, Executive Order Nos. 9066 and 9102, which authorize the exclusion of 'all persons of Japanese ancestry" from certain Military Areas, allow the continued detention of citizens of Japanese ancestry, once it is established that they are loyal and no longer a threat to the United States?

A. Background:

"[T]he Appellant, is an American citizen of Japanese ancestry. She was evacuated from Sacramento, California, in 1942, pursuant to certain military orders which we will presently discuss, and was removed to the Tule Lake War Relocation Center located at Newell, Modoc County, California."

In July, 1942, she filed a petition for a writ of habeas corpus alleging "that she is a loyal and law-abiding citizen of the United States, that no charge has been made against her, that she is being unlawfully detained, and that she is confined in the Relocation Center under armed guard and held there against her will."

"That petition was denied by the District Court of the United States for the Northern District of California in July, 1943, and an appeal was prefected to the Circuit Court of Appeals in August, 1943. Shortly thereafter appellant was transferred from the Tule Lake Relocation Center to the Central Utah Relocation Center located at Topaz, Utah, where she is presently detained. "

On appeal the US Supreme Court reversed the judgment of the District Court for the Northern District of California.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Mr. James C. Purcell, of San Francisco, Cal., for Mitsuye endo. Mr. Charles Fahey, Sol. Gen., of Washington, D.C., for Eisenhower, Director.

"[T]he President promulgated Executive Order No. 9066, 7 Fed.Reg. 1407. It recited that 'the successful prosecution of the war requires every possible protection against espionage and against sabotage to national defense material, national-defense premises, and national-defense utilities...' [I]t authorized and directed 'the Secretary of War, and the Military Commanders... to prescribe military areas... from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion...' Appellant's exclusion was effected by Civilian Exclusion Order No. 52, dated May 7, 1942. It ordered that 'all persons of Japanese ancestry, both alien and non-alien' be excluded from Sacramento, California....  

By letter of August 11, 1942, General De Witt authorized the War Relocation Authority to issue permits for persons to leave these areas... The program of the War Relocation Authority is said to have three main features: (1) the maintenance of Relocation Centers as interim places of residence for evacuees; (2) the segregation of loyal from disloyal evacuees; (3) the continued detention of the disloyal and so far as possible the relocation of the loyal in selected communities. In connection with the latter phase of its work the War Relocation Authority established a procedure for obtaining leave from Relocation Centers...

Mitsuye Endo made application for leave clearance on February 19, 1943, after the petition was filed in the District Court. Leave clearance was granted her on August 16, 1943. But she made no application for indefinite leave...

1) We are of the view that Mitsuye Endo should be given her liberty. In reaching that conclusion we do not come to the underlying constitutional issues which have been argued. For we conclude that, whatever power the War Relocation Authority may have to detain other classes of citizens, it has no authority to subject citizens who are concededly loyal to its leave procedure...

[T]he Constitution when it committed to the Executive and to Congress the exercise of the war power necessarily gave them wide scope for the exercise of judgment and discretion so that war might be waged effectively and successfully... At the same time, however, the Constitution is as specific in its enumeration of many of the civil rights of the individual as it is in its enumeration of the powers of his government. Thus it has prescribed procedural safeguards surrounding the arrest, detention and conviction of individuals...

The Act of March 21, 1942, was a war measure... The purpose and objective of the Act and of these orders are plain. Their single aim was the protection of the war effort against espionage and sabotage... Moreover, unlike the case of curfew regulations, the legislative history of the Act of March 21, 1942, is silent on detention. And that silence may have special significance in view of the fact that detention in Relocation Centers was not part of the original program of evacuation but developed later to meet what seemed to the officials in charge to be mounting hostility to the evacuees on the part of the communities where they sought to go...

Community hostility even to loyal evacuees may have been (and perhaps still is) a serious problem. But if authority for their custody and supervision is to be sought on that ground, the Act of March 21, 1942, Executive Order No. 9066, and Executive Order No. 9102, offer no support. And none other is advanced. To read them that broadly would be to assume that the Congress and the President intended that this discriminatory action should be taken against these people wholly on account of their ancestry even though the government conceded their loyalty to this country. We cannot make such an assumption.

Mitsuye Endo is entitled to an unconditional release by the War Relocation Authority.

2) The question remains whether the District Court has jurisdiction to grant the writ of habeas corpus because of the fact that while the case was pending in the Circuit Court of Appeals Appellant was moved from the Tule Lake Relocation Center in the Northern District of California where she was originally detained to the Central Utah Relocation Center in a different district and circuit.

The statute upon which the jurisdiction of the District Court in habeas corpus proceedings rests (Rev.Stat. 752, 28 U.S.C. 452, 28 U.S.C.A. 452) gives it power 'to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty.' That objective may be in no way impaired or defeated by the removal of the prisoner from the territorial jurisdiction of the District Court. That end may be served and the decree of the court made effective if a respondent who has custody of the prisoner is within reach of the court's process even though the prisoner has been removed from the district since the suit was begun."

The US Supreme Court reversed the judgment of the of the District Court for the Northern District of California.

Justice Vote: 9 Pro vs. 0 Con
(Unanimous Decision for Petitioner/Appellant)

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

The ACLU, as amicus curiae, urged reversal of the judgment of the District Court for the Northern District of California; the Supreme Court reversed in a 9-0 vote, giving the ACLU an apparent win.