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Comparing Two Controversial Executive Orders

“Those who cannot remember the past are condemned to repeat it.”
George Santayana

Article 2, Section 1 of the Constitution requires that before U.S. presidents can assume their duties they are required to take the oath of office, affirming in part that they “will to the best of my ability, preserve, protect and defend the Constitution of the United States. This post will review and compare two controversial presidential executive orders that were issued in the interest of national security, and that many believe violate various provisions and protections guaranteed by the U.S. Constitution. Among these are the First Amendment rule barring the establishment of religion, the Fifth Amendment’s right to due process of law, and the Fourteenth Amendment’s guarantee of equal protection.

1942: President Franklin D. Roosevelt’s Executive Order #9066

On December 7, 1941, Japan launched a surprise attack on the U.S. Pacific Fleet in Pearl Harbor, Hawaii. A total of 2,403 were killed, including 2,335 military personnel and 68 civilians. The United States entered World War II by declaring war on Japan the following day. A wave of anti-Japanese sentiment across the country was accompanied by widespread fear of a Japanese attack, especially on the vulnerable West Coast. On February 19, 1942, President Franklin D. Roosevelt issued Executive Order 9066, which authorized the Secretary of War to declare certain areas of the United States military zones in order to prevent espionage and sabotage.

Residents of Japanese Ancestry Awaiting the Bus at the
Wartime Civil Control Station, San Francisco, Apr. 1942
By Dorothea Lange, U.S. War Relocation Authority via Library of Congress [public domain]

Within weeks, all persons of Japanese ancestry–whether citizens or enemy aliens, young or old, rich or poor–were ordered to assembly centers near their homes. Soon they were sent to permanent relocation centers outside the restricted military zones defined by the order. Around 120,000 people of Japanese descent, two-thirds of whom were native-born citizens of the United States, were forced into remote and desolate internment camps with armed guards and barbed wire for the duration of the war. There were 10 different sites across the country, including Tule Lake, California; Minidoka, Idaho; Manzanar, California; Topaz, Utah; Jerome, Arkansas; Heart Mountain, Wyoming; Poston, Arizona; Granada, Colorado; and Rohwer, Arkansas. Many lost their homes and businesses and were separated from loved ones for the duration of the war.

In 1942, 23-year-old Fred Korematsu, who was born in Oakland, California, to Japanese immigrants, refused to go to the government’s incarceration camps for Japanese Americans. After he was arrested and convicted of defying the government’s order, he appealed his case all the way to the Supreme Court, arguing that Congress, the President, and the military authorities did not have the power to issue the relocation orders and that he was being discriminated against based on his race. The government argued that the evacuation was necessary to protect the country. In Korematsu v. United States (1944), the Supreme Court ruled 6-3 that the need to protect the country in time of war was a greater priority than the individual rights of Japanese immigrants and Japanese Americans. One of the three dissenting opinions, written by the lone Republican-appointed Justice Owen Roberts, stated that “I think the indisputable facts exhibit a clear violation of Constitutional rights.”

Protest Against Donald Trump’s Muslim Ban
By Fibonacci Blue from Minnesota, USA [CC BY 2.0], via Wikimedia Commons


2017: President Donald J. Trump ‘s Executive Order #13769

Skip to 75 years later. One week after taking office, on January 27, 2017, President Donald Trump issued Executive Order #13769, ordering a halt on immigration from seven majority-Muslim countries–Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Two days later, the president released a statement which read, “To be clear, this is not a Muslim ban, as the media is falsely reporting. This is not about religion–this is about terror and keeping our country safe.” The order sparked immediate protests both across the country as well as internationally.

The next day, a federal judge in New York blocked part of the order. On March 6, Trump released a revised travel ban that excluded Iraq from the list of Muslim-majority countries whose citizens were temporarily blocked. A federal judge in Hawaii then issued a nationwide restraining order on the revised travel ban March 15, ruling that it still discriminated on the basis of nationality. The 4th U.S. Circuit Court of Appeals upheld the lower court’s ruling on May 25. The Trump administration then appealed to the Supreme Court, which will hear arguments on the travel ban order in October 2017. Stay tuned.

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