U.S. Supreme Court During the War

Late in the nineteenth century, Justice Stephen J. Field declared, “War seems to create–or leave unresolved–at least as many problems as it settles.” Issues are raised when a nation is at war that would never be raised during times of peace. World peace was shattered by the German invasion of Poland in 1939. The Japanese attack on Pearl Harbor in Hawaii, the headquarters of the U.S. Pacific Fleet, on December 7, 1941, thrust the United States into its second world war within twenty-five years.

Many U.S. actions during this war, especially on the home front, were affected by and interpreted by the Supreme Court. These actions include war-making powers, emergency powers, economic controls, and the internment of Japanese Americans, both resident aliens and U.S. citizens of Japanese descent.

Late in the nineteenth century, Justice Stephen J. Field declared, “War seems to create–or leave unresolved–at least as many problems as it settles.” Issues are raised when a nation is at war that would never be raised during times of peace. World peace was shattered by the German invasion of Poland in 1939. The Japanese attack on Pearl Harbor in Hawaii, the headquarters of the U.S. Pacific Fleet, on December 7, 1941, thrust the United States into its second world war within twenty-five years.

A major U.S. objective in World War II was to preserve the principle of constitutional government. Ironically, parts of that principle had to be sacrificed in order to preserve the whole. During World War II, the wheels of U.S. government had to be streamlined as part of the war effort. Early in 1942, in a lecture at Cornell University, political scientist Robert Cushman outlined three changes that he believed would result from that streamlining. The first was the relationship between the states and the federal government, in which the states would lose. Second was the relationship between Congress and the president, in which Congress would lose. The last change would be the impact on civil liberties, where individual citizens would lose to strengthen the nation as a whole. Cushman’s predictions proved accurate, although surprisingly few of the changes rose to the need of a Supreme Court decision.

War-Making Powers

The Constitution carefully divides the war-making powers of Congress and of the president. Congress has the responsibility for raising and supporting military forces and the sole authority to declare war. The president is the commander in chief of all military forces and therefore has the authority to send them anywhere in the world. After President Franklin D. Roosevelt asked Congress, on December 8, 1941, for a declaration of war against Japan, each branch carried out its constitutional responsibilities.

One major issue involving war-making powers was the raising of military forces by involuntary means. Conscription was used during the Civil War and accepted as constitutional. However, during World War I, conscription was criticized as being involuntary servitude and therefore in violation of the Thirteenth Amendment. The Supreme Court, in Butler v. Perry (1916) and in subsequent Selective Draft Law Cases (1918), differentiated between involuntary servitude and involuntary duty. In 1939, with war again raging in Europe, the possibility and constitutionality of a peacetime draft was discussed in the United States. By June, 1940, with France on the verge of collapse, eventual U.S. involvement in the war seemed certain.

President Roosevelt did not want the nation caught unprepared as in 1917, but knowing that a peacetime draft would arouse strong opposition, especially with the inborn American fear of a strong government, he appointed a private citizen task force to develop a plan. The group was led by Grenville Clark, a highly respected law partner of Elihu Root (secretary of war, 1901–1904). The plan was implemented with surprisingly little opposition or refusal to register, as in 1917. The Court resolved, in Falbo v. United States (1944), an issue involving a conscientious objector who had failed to report for alternate civilian service as ordered. Falbo’s claim of ministerial exemption had been rejected by his draft board, but the Court refused to accept his appeal. Other draft-related problems, such as congressional expansion of the draft to include eighteen-year-olds, pre-Pearl Harbor fathers, and some farmworkers, the issue of African American soldiers in combat after D day in 1944, and interpretation of fair deferment standards, were all resolved without further Court action. A related issue of national civilian service was raised by Clark and Roosevelt in 1944 but was rejected by Congress.

President Franklin D. Roosevelt signing the declaration of war against Japan on December 8, 1941. (National Archives)

Military courts also became an issue during the war. In Ex parte Quirin (1942), the Court ruled that a military commission had the right to try eight German saboteurs who were captured with explosives on beaches in New York and Florida six months after Pearl Harbor. The Court in In re Yamashita (1946) upheld the right of the military to condemn a Japanese officer for war crimes. However, in Duncan v. Kahanamoku (1946), the Court refused to extend the power of military courts to include civilian crimes not related to the war.

Emergency Powers

The Constitution does not make specific provisions for emergency powers to be used by the executive branch of government. However, an issue that arose during World War II was the presidential use of emergency or discretionary funds. In 1943 Congress passed the Urgent Deficiency Appropriations Act. Section 304 of that act, initiated by the House Committee on Un-American Activities, chaired by Representative Martin Dies (Democrat, Texas), suspended salary or compensation for three federal employees after November 15, 1943, unless by that date they were reappointed by the president with the advice and consent of the Senate. The named employees were Robert Morse Lovett, William E. Dodd, Jr., and Goodwin B. Watson. They were among thirty-nine federal employees attacked in a speech in the House by Representative Dies on February 1, 1943, as being “irresponsible, unrepresentative, crackpot radical bureaucrats” and affiliates of “communist front organizations.”

Although the president did not reappoint Lovett, Dodd, and Watson, the agencies for which they worked kept them on the job after November 15, but without their salaries. The men later filed with the Court of Claims to recover their lost salaries on three grounds: that Congress has no power to remove executive employees, that section 304 violated Article I, section 9, clause 3, of the Constitution, which prohibits bills of attainder and ex post facto laws, and that it violated the due process clause of the Fifth Amendment. In United States v. Lovett (1946), the Court ruled that section 304 was in fact a bill of attainder and thus in violation of the Constitution. Lovett, Dodd, and Watson were entitled to receive their salaries and compensation after November 15, 1943.

Japanese American Internment

After the United States declared war on Japan, President Roosevelt issued several executive orders that seriously affected the rights of any person of Japanese ancestry living in the United States, especially those living on the West Coast. The orders authorized the secretary of war to designate military areas within the United States and to limit individual rights in those areas. Congress soon ratified the president’s action by authorizing curfew orders to protect vital war resources. On March 24, 1942, in accordance with the orders, the military commander of the Western Defense Command, Lieutenant General J. L. DeWitt, proclaimed the entire Pacific coast to be a military area and that all persons of Japanese descent must observe a curfew from 8:00 p.m. to 6:00 a.m.

After losing his test case in the Supreme Court in 1944, Fred Korematsu continued to challenge the ruling until 1983, when the Court finally vacated its earlier decision because the government had suppressed evidence. Meanwhile, Korematsu became a prominent spokesperson for civil liberties and remained a sought-after lecturer into the twenty-first century. (Asia Week)

Gordon Kiyoshi Hirabayashi was an American citizen and a student at the University of Washington in Seattle. After he was convicted of violating the curfew, he appealed on the grounds that the executive orders and the power delegated to military authorities were in violation of the Fifth Amendment. His case, Hirabayashi v. United States reached the Court in 1943. The Court, in an opinion written by Chief Justice Harlan Fiske Stone, unanimously upheld both the presidential orders and the curfew, basing the action on the great importance of the military installations on the West Coast and on the close ties that persons of Japanese descent had with their mother country. The decision viewed the curfew as a protective measure but did not answer the constitutional issues involved. Chief Justice Stone went so far as to say that racial discrimination was justified during times of war when applied to those who had ethnic affiliation with an invading enemy.

Military authorities eventually decided that people of Japanese descent must be evacuated from the West Coast. When voluntary evacuation failed, a new presidential order created the War Relocation Authority, which was given the task of relocating one hundred thousand people. Fred Korematsu, from San Leandro, California, was arrested for refusing evacuation. The American Civil Liberties Union chose him as a test case for the constitutionality of the presidential order. Like Hirabayashi, Korematsu was a U.S. citizen. The Court, in an opinion written by Justice Hugo L. Black in 1944, decided Korematsu v. United States on the same basis as Hirabayashi’s case but this time without a unanimous decision. Justice Black stated that compulsory evacuation was constitutionally suspect but was justified by the national emergency.

In a case related to Korematsu, Ex parte Endo (1944), Justice William O. Douglas ordered the release of a Japanese American whose loyalty was never questioned. He argued that congressional approval of the War Relocation Authority was not a blanket approval for every individual case.

The Court treated the internment of people of Japanese ancestry as an exercise of the government’s emergency powers and appeared to regard the suspension of civil liberties as necessary in the interest of national security.

Economic Controls

Less than two months after the attack on Pearl Harbor, Congress passed the Emergency Price Control Act in order to prevent inflation that would hinder the war effort. In Yakus v. United States (1944), the Court ruled only on the manner in which Congress should achieve its goal, not on the goal itself. The Court upheld the power given by the act to the administrator of the Office of Price Administration to fix maximum prices and rents for a limited period of time, stating that sufficient standards had been established by Congress to ensure the just application of the law. Similar issues relating to economic controls followed the same pattern.