320 U.S. 81 (1943), 870, Hirabayashi v. United States

Docket Nº:No. 870
Citation:320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774
Party Name:Hirabayashi v. United States
Case Date:June 21, 1943
Court:United States Supreme Court

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320 U.S. 81 (1943)

63 S.Ct. 1375, 87 L.Ed. 1774



United States

No. 870

United States Supreme Court

June 21, 1943

Argued May 10, 11,1943




1. Where a defendant is convicted on two counts of an indictment and the sentences are ordered to run concurrently, it is unnecessary on review to consider the validity of the sentence on both of the counts if the sentence on one of them is sustainable. P. 85.

2. Pursuant to Executive Order No. 9066, promulgated by the President on February 19, 1942, while the United States was at war with Japan, the military commander of the Western Defense Command promulgated an order requiring, inter alia, that all persons of Japanese ancestry within a designated military area "be within their place of residence between the hours of 8 p. m. and 6 a. m." Appellant, a United States citizen of Japanese ancestry, was convicted in the federal District Court for violation of this curfew order.


(1) By the Act of March 21, 1942, Congress ratified and confirmed Executive Order No. 9066, and thereby authorized and implemented such curfew orders as the military commander should promulgate pursuant to that Executive Order. P. 91.

(2) It was within the constitutional authority of Congress and the Executive, acting together, to prescribe this curfew order as an emergency war measure. P. 92.

In the light of all the facts and circumstances, there was substantial basis for the conclusion, in which Congress and the military commander united, that the curfew as applied was a protective measure necessary to meet the threat of sabotage and espionage which would substantially affect the war effort and which might reasonably be expected to aid a threatened enemy invasion. P. 95.

(3) The curfew order did not unconstitutionally discriminate against citizens of Japanese ancestry. P. 101.

(a) The Fifth Amendment contains no equal protection clause, and it restrains only such discriminatory legislation by Congress as amounts to a denial of due process. P. 100.

(b) The curfew order as applied, and at the time it was applied, was within the boundaries of the war power. P. 102.

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(c) The adoption by the Government, in the crisis of war and of threatened invasion, of measures for the public safety, based upon the recognition of fact and circumstances which indicate that a group of one national extraction my menace that safety more than others, is not to be condemned as unconstitutional merely because, in other and in most circumstances, racial distinctions are irrelevant. P. 101.

(d) An appropriate exercise of the war power is not rendered invalid by the fact that it restricts the liberty of citizens. P. 99.

(4) The promulgation of the curfew order by the military commander was based on no unconstitutional delegation of legislative power. P. 102.

The essentials of the legislative function are preserved when Congress provide that a statutory command shall become operative upon ascertainment of a basic conclusion of fact by a designated representative of the Government. The Act of March 21, 1942, which authorized that curfew orders be made pursuant to Executive Order No. 9066 for the protection of war resources from espionage and sabotage, satisfies those requirements. P. 104.


Response to questions certified by the Circuit Court of Appeals upon an appeal to that court from a conviction in the District Court upon two counts of an indictment charging violations of orders promulgated by the military commander of the Western Defense Command. This Court directed that the entire record be certified, so that the case could be determined as if brought here by appeal. See 46 F.Supp. 657.

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STONE, J., lead opinion

MR. CHIEF STONE delivered the opinion of the Court.

Appellant, an American citizen of Japanese ancestry, was convicted in the district court of violating the Act of Congress of March 21, 1942, 56 Stat. 173, 18 U.S.C. § 97a, which makes it a misdemeanor knowingly to disregard restrictions made applicable by a military commander [63 S.Ct. 1378] to persons in a military area prescribed by him as such, all as authorized by an Executive Order of the President.

The questions for our decision are whether the particular restriction violated, namely, that all persons of Japanese ancestry residing in such an area be within their place of residence daily between the hours of 8:00 p.m. and 6:00 a.m., was adopted by the military commander in the exercise of an unconstitutional delegation by Congress of its legislative power, and whether the restriction unconstitutionally discriminated between citizens of Japanese ancestry and those of other ancestries in violation of the Fifth Amendment.

The indictment is in two counts. The second charges that 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

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in the designated military area between the hours of 8:00 o'clock p.m. and 6:00 a.m. The first count charges that appellant, on May 11 and 12, 1942, had, contrary to a Civilian Exclusion Order issued by the military commander, failed to report to the Civil Control Station within the designated area, it appearing that appellant's required presence there was a preliminary step to the exclusion from that area of persons of Japanese ancestry.

By demurrer and plea in abatement, which the court overruled (46 F.Supp. 657), appellant asserted that the indictment should be dismissed because he was an American citizen who had never been a subject of and had never borne allegiance to the Empire of Japan, and also because the Act of March 21, 1942, was an unconstitutional delegation of Congressional power. On the trial to a jury, it appeared that appellant was born in Seattle in 1918, of Japanese parents who had come from Japan to the United States, and who had never afterward returned to Japan; that he was educated in the Washington public schools, and, at the time of his arrest was a senior in the University of Washington; that he had never been in Japan or had any association with Japanese residing there.

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 evidence also showed that, for like reason, he was away from his place of residence after 8:00 p.m. on May 9, 1942. The jury returned a verdict of guilty on both counts, and appellant was sentenced to imprisonment for a term of three months on each, the sentences to run concurrently.

On appeal, the Court of Appeals for the Ninth Circuit certified to us questions of law upon which it desired instructions

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for the decision of the case. See § 239 of the Judicial Code as amended, 28 U.S.C. § 346. Acting under the authority conferred upon us by that section, we ordered that the entire record be certified to this Court so that we might proceed to a decision of the matter in controversy in the same manner as if it had been brought here by appeal. Since the sentences of three months each imposed by the district court on the two counts were ordered to run concurrently, it will be unnecessary to consider questions raised with respect to the first count if we find that the conviction on the second count, for violation of the curfew order, must be sustained. Brooks v. United States, 267 U.S. 432, 441; Gorin v. United States, 312 U.S. 19, 33.

The curfew order which appellant violated, and to which the sanction prescribed by the Act of Congress has been deemed to attach, purported to be issued pursuant to an Executive Order of the President. In passing upon the authority of the military commander to make and execute the order, it becomes necessary to consider in some detail the official action which preceded or accompanied the order and from which it derives its purported authority.

On December 8, 1941, one day after the bombing of Pearl Harbor by a Japanese air force, Congress declared war against [63 S.Ct. 1379] Japan. 55 Stat. 795. On February 19, 1942, the President promulgated Executive Order No. 9066. 7 Federal Register 1407. The Order 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 as defined in Section 4, Act of April 20, 1918, 40 Stat. 533, as amended by the Act of November 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655.

By virtue of the authority vested

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in him as President and as Commander in Chief of the Army and Navy, the President purported to

authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, 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.

On February 20, 1942, the Secretary of War designated Lt. General J. L. DeWitt as Military Commander of the Western Defense Command, comprising the Pacific Coast states and some others, to carry out there the duties prescribed by Executive Order No. 9066. On March 2, 1942, General DeWitt promulgated Public Proclamation No. 1. 7 Federal...

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