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A Few More Thoughts on Korematsu
Michael Ramsey

Co-blogger Andrew Hyman recently had this interesting post on the Korematsu case.   I entirely agree with the first four paragraphs.  I think the last paragraph, regarding the power of Congress, does not go far enough.

Many years ago in the early history of this blog I wrote this post about Korematsu.  I now think that it also did not go far enough.  In that post I intimated (as Andrew does) that Korematsu (or some version of Korematsu with better facts for the government) would be a hard case on originalist grounds.  On further reflection I think that is not correct.  From an originalist perspective, Congress does not have the power to authorize the actions taken in Korematsu, period.

First, Congress likely does not have an enumerated power to order the exclusion or detention of a large group of U.S. citizens in the United States just because they might pose a security risk.  As I wrote in my earlier post: 

The starting point should be whether Congress has an enumerated power to authorize the executive actions in the case.  According to the Korematsu Court, Congress’ war power allows it to do anything connected to winning the war.  But this was the New Deal Court, highly nonoriginalist and uninterested in enumerated-powers-based limits on Congress.  Add the wartime context, and it’s no surprise that the Court found in effect no enumerated-powers limits.  But is there an originalist basis for such a broad war power? Since Congress doesn't actually have an enumerated war power (only the power to declare war), the best form of the argument appears to go like this: the President has an executive power to fight a war under Congress’ authorization; Congress has power to make laws necessary and proper to carry into execution powers the Constitution grants to the President (here, to conduct the war); and if the President finds it useful to exclude Japanese-Americans from the West Coast to aid the war effort, Congress can back that up with the force of law.

Put this way, though, the war power as imagined in Korematsu amounts in effect to a suspension of the Tenth Amendment and of the enumerated powers structure of the federal government during wartime.  Given a plausible connection to the war effort (which shouldn’t be difficult to establish), Congress could reach any function otherwise reserved to the states or the people.  Perhaps the founders provided such a sweeping war power, but it sits uncomfortably with the Federalists’ assurances that the powers of the national government were “few and defined” (Madison in Federalist 45) and that the enumerated powers structure was such a powerful protection of liberty that a Bill of Rights was superfluous.  One could imagine a much narrower version of the war power that allowed a free field of federal action in areas of actual combat, but did not allow Congress to affect private rights within the United States outside the zone of combat, except through its other enumerated powers.  Given the immense importance the framers attached to enumerated powers, I would expect originalists to want some strong evidence before adopting the broadest version.  At minimum, the Korematsu Court’s nonoriginalist invocation of an unbounded war power seems open to much question.

Congress and the President likely do have broad powers to regulate activity in an actual war zone, but that is not what was at issue in Korematsu.

Second, the exclusion and detention violates rights secured by the due process clause.  In my prior post I suggested that this could be tied to the racially discriminatory nature of the order, as suggested by the Korematsu dissent.  But on further reflection I think it isn't necessary to reach that question.  Exclusion and detention, by legislative fiat without any judicial process, violates the due process clause in any event.  Congress cannot simply conclude (or authorize the President to conclude) that particular persons or a class of persons pose too great a risk to remain free.  (It's true that here I am taking sides in a larger intra-originalist debate on whether the due process clause restrains only the executive and judiciary, or whether it also constrains the legislature; I take the latter side).

The exception to this proposition -- that Congress cannot authorize executive exclusion and detention -- is the habeas corpus suspension clause (Art. I, Sec. 9).  As Amanda Tyler explains in her outstanding book on the subject, that  was the point of the  clause: to recognize an exception to the general rule (implicit in the original Constitution, and later confirmed by the due process clause) that the executive cannot detain people who are perceived threats outside of ordinary judicial process. If Congress could authorize executive detention as a general matter, the habeas suspension clause would be superfluous.

But Congress' power to suspend habeas corpus is limited to cases of "Rebellion or Invasion."  There was no rebellion or invasion on the U.S. west coast at the time of Korematsu.