BRIEF OF KAREN KOREMATSU, JAY HIRABAYASHI, HOLLY YASUI, THE FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY, CIVIL RIGHTS ORGANIZATIONS, AND NATIONAL BAR ASSOCIATIONS OF COLOR AS AMICI CURIAE IN SUPPORT OF RESPONDENTS.

• Position: Symposium on the Seventy-Fifth Anniversary Year of Executive Order 9066

INTERESTS OF AMICI CURIAE (1)

Karen Korematsu, Jay Hirabayashi, and Holly Yasui--the children of Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui--come forward as amici curiae because they see the disturbing relevance of this Court's decisions in their fathers' infamous cases challenging the mass removal and incarceration of Japanese Americans during World War II to the serious questions raised by Presidential Proclamation No. 9645.

Minoru Yasui was a 25-year-old attorney in Portland, Oregon, when, on March 28, 1942, he intentionally defied the government's first actionable order imposing a curfew on persons of Japanese ancestry in order to challenge the order's constitutionality. Gordon Hirabayashi was a 24-year-old college senior in Seattle, Washington, when, on May 16, 1942, he similarly chose to defy the government's curfew and removal orders. Fred Korematsu was a 22-year-old welder in Oakland, California, when, on May 30, 1942, he was arrested for refusing to report for removal.

All three men brought their constitutional challenges to this Court. Deferring to the government's claim that the orders were justified by military necessity, the Court affirmed their convictions. Our Nation has since recognized that the mass removal and incarceration of Japanese Americans was wrong; the three cases have been widely condemned; and all three men have been recognized with the Presidential Medal of Freedom for their wartime courage and lifetime work advancing civil and human rights.

Their children have sought to carry forward their fathers' legacy by educating the public and, as appropriate, reminding the courts of the human toll and constitutional harms wrought by governmental actions, carried out in the name of national security, that impact men, women, and children belonging to disfavored minority groups. Guilt, loyalty, and threat are individual attributes. Courts must be vigilant when these attributes are imputed to entire racial, religious, and/or ethnic groups. The Hirabayashi, Yasui, and Korematsu cases stand as important reminders of the need for courts--and especially this Court--to fulfill their essential role in our democracy by checking unfounded exercises of executive power.

The Korematsu, Hirabayashi, and Yasui families are proud to stand with the following public interest organizations:

The Fred T. Korematsu Center for Law and Equality ("Korematsu Center") is based at the Seattle University School of Law. Inspired by the legacy of Fred Korematsu, the Korematsu Center works to advance justice for all through research, advocacy, and education. The Korematsu Center has a special interest in addressing government action targeting classes of persons based on race, nationality, or religion and in seeking to ensure that courts understand the historical--and, at times, unjust--underpinnings of arguments asserted to support the exercise of such executive power. The Korematsu Center does not, here or otherwise, represent the official views of Seattle University.

Asian Americans Advancing Justice ("Advancing Justice") is the national affiliation of five nonpartisan civil rights organizations whose offices are located in Washington D.C. (AAJC), San Francisco (Asian Law Caucus), Atlanta, Chicago and Los Angeles. Through direct services, impact litigation, amicus briefs, policy advocacy, leadership development, and capacity building, the Advancing Justice affiliates advocate for marginalized members of the Asian American, Native Hawaiian, Pacific Islander, and other underserved communities, including immigrant members of those communities.

The Asian American Legal Defense and Education Fund ("AALDEF"), founded in 1974, is a national organization that protects and promotes the civil rights of Asian Americans. By combining litigation, advocacy, education, and organizing, AALDEF works with Asian American communities nationwide to secure human rights for all. In 1982, AALDEF supported reparations for Japanese Americans forcibly relocated and imprisoned during World War II. After 9/11, AALDEF represented more than 800 individuals from Muslim-majority countries who were called in to report to immigration authorities under the Special Registration program. AALDEF is currently providing community education and legal counseling to Asian Americans affected by the challenged Presidential Proclamation.

The Hispanic National Bar Association ("HNBA") comprises 8thousands of Latino lawyers, law professors, law students, legal professionals, state and federal judges, legislators, and bar affiliates across the country. The HNBA is committed to advocacy on issues of importance, including immigration and protection of refugees, to the 53 million people of Hispanic heritage living in the United States.

The Japanese American Citizens League of Hawaii, Honolulu Chapter ("JACL Honolulu") draws upon Hawaii's rich, multiethnic society and strong cultural values, but broadly focuses on addressing discrimination and intolerance towards all people victimized by injustice and prejudice. JACL Honolulu supported redress for Japanese Americans incarcerated during World War II and sponsors annual events to educate the public regarding that unjust incarceration, one of the core reasons for the founding of the JACL Honolulu chapter.

LatinoJustice PRLDEF, Inc. ("LatinoJustice") is a national civil rights legal defense fund that has defended the constitutional rights and equal protection of all Latinos under the law. Latino Justice's continuing mission is to promote the civic participation of the greater pan-Latino community in the United States, to cultivate Latino community leaders, and to engage in and support law reform litigation across the country addressing criminal justice, education, employment, fair housing, immigrants' rights, language rights, redistricting, and voting rights. During its 45-year history, LatinoJustice has litigated numerous cases in both state and federal courts challenging governmental racial discrimination.

The National Bar Association ("NBA") is the largest and oldest association of predominantly African-American attorneys and judges in the United States. Founded in 1925 when there were only 1,000 African-American attorneys nationwide and when other national bar associations, such as the ABA, did not admit African-American attorneys, the NBA today has a membership of approximately 66,000 lawyers, judges, law professors and law students, and has over 75 affiliate chapters. Throughout its history, the NBA consistently has advocated on behalf of African Americans and other minority populations regarding issues affecting the legal profession.

The South Asian Bar Association of North America ("SABA") is the umbrella organization for 26 regional bar associations in North America representing the interests of over 6,000 attorneys of South Asian descent. Providing a vital link for the South Asian community to the law and legal system, SABA takes an active interest in the legal rights of South Asian and other minority communities. Members of SABA include immigration lawyers and others who represent persons that have been and will be affected by the Presidential Proclamation.

INTRODUCTION AND SUMMARY OF ARGUMENT

"Often the question has been raised whether this country could wage a new war without the loss of its fundamental liberties at home. Here is one occasion for this Court to give an unequivocal answer to that question and show the world that we can fight for democracy and preserve it too."

Gordon Hirabayashi made that plea to the Court in 1943, as he appealed his conviction for violating military orders issued three months after the Japanese attack on Pearl Harbor. Authorized by Executive Order No. 9066, those orders led to the forced removal and incarceration of over 120,000 men, women, and children of Japanese descent living on the West Coast.

Mr. Hirabayashi did not stand alone before this Court. Minoru Yasui likewise invoked our Nation's ideals in casting his separate but related appeal as "the case of all whose parents came to our shores for a haven of refuge" and insisting that the country should respond to war and strife "in the American way and not by *** acts of injustice." Appellant Br. 55-56, Yasui v. United States, No. 871 (U.S. Apr. 30, 1943). The Court denied the appeals of both men. See Hirabayashi v. United States, 320 U.S. 81 (1943); Yasui v. United States, 320 U.S. 115 (1943).

The following year, this Court revisited the mass removal and incarceration of Japanese Americans in Korematsu v. United States, 323 U.S. 214 (1944). In Korematsu, the Court again failed to stand as a bulwark against governmental action that undermines core constitutional principles. By refusing to scrutinize the government's claim that its abhorrent treatment of Japanese Americans was justified by military necessity, the Court enabled the government to cover its racially discriminatory policies in the cloak of national security.

In this case, the Court is once again asked to abdicate its critical role in safeguarding fundamental freedoms. Invoking national security, the government seeks near complete deference to the President's decision to deny indefinitely all immigrant and most non-immigrant visas to nationals of six Muslim-majority countries. See Proclamation 9645, "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats," 82 Fed. Reg. 45,161 (Sept. 27, 2017) ("Presidential Proclamation").

The government claims it is merely asking for the application of established legal principles, but the extreme deference it seeks is not rooted in sound constitutional tradition. Rather, it rests on doctrinal tenets infected with long-repudiated racial and nativist precepts. In support of the sweeping proposition that the President's authority to exclude aliens is unbounded, the government previously invoked the so-called "plenary power"...