Flashback: Japanese American internment is a cautionary tale for Trump travel ban Japanese American internment was an unconstitutional embarrassment enabled by Supreme Court deference to a president. Let's not go down that path again.

Amanda L. Tyler | Opinion contributor

Editor's note: This column originally ran in January when the Supreme Court agreed to review President Trump's travel ban. The court heard arguments on the case Wednesday.

Fighting to reinstate its "travel ban," the Trump administration told the Supreme Court that the lower courts blocking it had "overridden the president’s judgments on sensitive matters of national security and foreign relations, and severely restricted the ability of this and future presidents to protect the nation."

The argument that the judiciary should defer to the executive branch on matters of national security is not a new one, and it has a long track record of success.

Nonetheless, now that the court has agreed to review the latest version of the ban, that argument should give the court pause. An earlier episode in U.S. history suggests why.

In February 1942, President Franklin D. Roosevelt issued Executive Order 9066. In the months that followed, military regulations imposed curfews on Japanese Americans in the western United States, required their evacuation, and ultimately mandated their detention in “relocation centers.”

These policies led to the involuntary detention of more than 120,000 persons of Japanese ancestry — including at least 70,000 U.S. citizens — for an average stay of three years.

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Since then, presidents and Congress have made apologies and declared that we have a collective responsibility to ensure that history never repeats itself. Meanwhile, government studies concluded that there was no factual basis for the fears of widespread disloyalty cited as justification for the policies. But everyone knew that then, and legal advisers were counseling the president that many of the proposed policies were unconstitutional.

Indeed, at the time of World War II, although the Supreme Court’s jurisprudence on equal protection had not evolved to where it applied to the federal government, there were separate — and widely acknowledged — constitutional problems with the internment that many recognized. Specifically, Attorney General Francis Biddle and Secretary of War Henry L. Stimson, both Harvard-trained lawyers, counseled that the detention of U.S. citizens would clearly violate the Constitution’s Suspension Clause.

That clause guarantees that the privilege of the writ of habeas corpus may not be suspended “unless when in cases of rebellion or invasion the public safety may require it.” The habeas privilege had long been understood to mean that in the absence of a valid suspension, the government could not detain citizens and others arguably protected by domestic law without filing criminal charges. President Lincoln even believed that a suspension was necessary to detain Confederate soldiers who waged war against the Union.

Roosevelt nonetheless issued 9066 and in it granted the military, in the words of one senior War Department official, carte blanche to do what it wanted. When legal challenges to the military regulations eventually spilled into the courts, the Supreme Court deferred extensively to executive branch assertions that such policies were necessary for national security. First, the court upheld the military’s curfew and exclusion regulations in the Hirabayashi and Korematsu cases, and even called into question the ability of Japanese Americans to assimilate into American society.

Then, when a direct challenge to the internment came before the court in Ex parte Endo, the court did rule against the government — but its opinion did not even discuss the important constitutional issues at stake. Instead, it narrowly interpreted the relevant military regulations in a way that misunderstood those issues. The court then held up its decision until after the 1944 election and tipped off the White House so that it could pre-empt the decision by announcing the closing of the camps.

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What happened during World War II suggests that judicial deference to the executive on national security matters — even in wartime — can be very dangerous. It likewise counsels that internal checks within the political branches can fail when concerns over national security may overrun constitutional considerations. After all, in sanctioning and later defending the military policies directed at Japanese Americans, government actors ignored the legal advice of key advisers within the executive branch as well as the recognition of many prominent officials — including no less than FBI Director J. Edgar Hoover — that the factual basis for the military regulations that followed under 9066 was dubious.

More generally, the lessons of World War II raise fundamental questions about the judicial role in a constitutional democracy. By deferring to the government in the Hirabayashi and Korematsu cases, the court announced decisions that we now routinely teach to law students as the embarrassments that they are. But none of the decisions has been overruled, leaving as their larger and inescapable legacy a historical precedent sanctioning racial and ethnic discrimination among our ranks, gutting the Suspension Clause, and upholding “a policy of mass incarceration under military auspices.”

These events should prove a cautionary tale. As the Supreme Court reviews the latest iteration of the travel ban, it bears remembering that its deference to the executive during World War II and unwillingness to confront the constitutional problems raised by the Japanese-American internment led the court down a path that we now view as anything but its finest hour.

Perhaps it is times like these that Alexander Hamilton had in mind when he anticipated that on occasion we will need “an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution.”

Amanda L. Tyler is a professor of law at the University of California-Berkeley School of Law and the author of Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay. Follow her on Twitter: @profamandatyler