THR Web Features   /   February 16, 2017

Beyond the Legality of Executive Orders

Guest Blogger

A young Japanese American waits to be taken to an assembly center. Via Wikimedia Commons.

This Sunday marks the seventy-fifth anniversary of Executive Order 9066. Signed by President Franklin D. Roosevelt on February 19, 1942, the order authorized the secretary of war and military commanders to establish “exclusion zones,” which ultimately led to the internment of 110,000 Japanese Americans. The Supreme Court upheld the constitutionality of these actions in a series of decisions culminating in Korematsu v. United States.

We are now in the middle of a heated national debate over another executive order: “Protecting the Nation From Foreign Terrorist Entry Into the United States,” signed by President Donald J. Trump. The two orders are not the same in scope or consequence. But they do bear some similarities. Neither Executive Order 9066 nor Trump’s immigration order singles out a group of people by name. Yet both orders make possible discriminatory action.

As much as I disagree with its substance and symbolism, many of the constitutional arguments raised against Trump’s executive order strike me as unpersuasive. The order does not flagrantly overstep the bounds of executive power as they are currently understood; nor is the purported Establishment Clause challenge as obvious as some commentators have suggested. (I find Michael McConnell’s analysis of the Ninth Circuit’s opinion closest to the mark.)

But whether or not an executive order is constitutional is not the only question that can be raised about it or even necessarily the most important. The actions of our president—particularly those formalized and ritualized as executive orders—have expressive as well as legal consequences. They tell us something about who we are and who we should be as a people. From this perspective, the historical connection to Executive Order 9066 reminds us of the dangers of fear and the human toll that can too easily result from that fear.

Reading the Korematsu opinion gives us a sense of the fear motivating the execution and implementation of Executive Order 9066. Justice Hugo Black noted that the government had presented no evidence questioning Fred Korematsu’s loyalty to the United States. But that mattered little against an order that required “every possible protection” against espionage and sabotage. Military authorities apprehended “the gravest imminent danger to the public safety.” The country faced “circumstances of direst emergency and peril” and “real military dangers.” Japanese Americans would suffer, “but hardships are part of war, and war is an aggregation of hardships.”

We know now that military officials relied on false and racially discriminatory information for their conclusions about military necessity. We know that the Department of Justice suppressed a key intelligence report that “undermined the rationale behind the internment.” And we know that millions of ordinary Americans expressly or tacitly endorsed the actions of their government, perhaps based on misinformation or perhaps for reasons rooted in their own prejudices.

We also know that a great number of Americans suffered incredible hardship that can never be repaid. In my recent book, Confident Pluralism, I briefly share the story of two of them, my grandparents. Born and educated in the United States, Lily and Taizo Inazu were interned at Manzanar, where my father was born. After protesting their internment, they were moved to a higher security camp, Tule Lake. Here is the longer account from my grandmother, from a conversation that I had with her when I was a teenager (and somehow had the good sense to record and transcribe):

In December we learned that Pearl Harbor had been bombed and that the United States and Japan were at war. About a week later the FBI came and took away many of the first generation men who didn't speak English and worked in the Japanese workplace. They came and picked up a man two doors from us. They were afraid that these people would start sabotaging, but we didn't think that we would have to leave because we were citizens. Then they started to announce on the radio that there was a curfew and the Japanese couldn't go anywhere without a special permit, so none of us could go to work. By this time everyone knew that the war had started and anyone with oriental faces shouldn't be on the streets. Then we started getting letters from the government that told us to get rid of everything we had. We had to go into our savings. We were planning to build a house in Santa Monica, but we had to take out all of our savings. On Tai's birthday, May 17th, we had to go into camp. Most of the other Japanese families had already gone to temporary holding areas like the race track. We were excused from going there because we had an invalid mother. We were only allowed to take one suitcase apiece, so we couldn't even bring blankets. We boarded a train and headed for Manzanar. When we got there, that was the saddest time. There were about twelve trains that had come in from Los Angeles and everyone was rushing to the hospital. We couldn't even get baby formula. My mother-in-law was in a wheelchair, and we couldn't even push it because the place was so sandy. When we got to our barracks, we were exhausted. I opened the door, and all that was there were a couple of cots and some blankets. I just stood there and cried.

The food at Manzanar wasn't as good as home, but it was enough. We had to stand in line to get meals for the old people and then go back and wait in line for our own. They had snacks too, but we had to buy them and I didn't have the time to go wait in line during the day. Tai worked as a community analyst during the day.

We had to spend all the money that we had saved on clothes because we were only given nine dollars for clothing allowance, and that couldn't even buy a pair of shoes. We ordered our clothes through the Sears catalog.

They had a separate men's and women's latrine but they just had a slab of wood tacked across the middle, so it wasn't really that private. They had a shower, but the little ones couldn't use it so they had to bathe in a big metal bucket. After almost two years we finally got some Lysol so we could scrub it out.

One day Donald got in a terrible accident. They were using a big oil truck to water down the road because it was so sandy, and when the truck came around, the older boys rushed to hop on the back for a ride. Donald watched the boys and thought it looked like fun, so he tried to hop on. The truck pinched his back and separated his pelvis an inch and a half. Someone had to run almost two miles up to the hospital to get the jeep because there were no phones. I was seven months pregnant but I had to carry Donald halfway to the hospital until the jeep came.

After two years at Manzanar, men came from Washington and interviewed everyone. This was because many of the first generation were thinking about going to Japan because here in America they were being interned. When we were interviewed, Tai said that he didn't understand why we were being interned because we had been born in this country, educated in this country, and never even seen Japan. He said that we were citizens and he didn't think we should be interned. The men from Washington told us that everything we had said had to be written down, and because of what Tai had said, we were being sent to Tule Lake. We didn't understand, because the people that were going to Tule Lake were the people who had said they wanted to go to Japan. Some of the interviewers couldn't understand why anyone was unhappy here because we were being fed and treated well. They said that we were in camp for our own protection. Anyway, Tule Lake was more strict and when we got there we behaved well.

Stories like my grandmother’s could be told across this country from tens of thousands of Japanese Americans who lived through the internment. Sadly, a new generation of stories is now emerging as a result of a hastily written and poorly executed executive order from the Trump Administration.

The fate of this new order will ultimately be resolved by legal arguments, many of which are far more technical—and more complicated—than courts and commentators have thus far acknowledged. But as we continue to watch and debate the president’s immigration order, we should also keep in mind one of the lessons of Executive Order 9066: We are far too easily swayed by our own fears and insecurities, and other human beings too often bear the consequences of those fears and insecurities.

John Inazu is a senior fellow at the Institute for Advanced Studies in Culture and the author of Confident Pluralism: Surviving and Thriving Through Deep Difference. He holds the Sally D. Danforth Distinguished Chair of Law and Religion at Washington University in St. Louis.