Shortly after Imperial Japan's infamous attack on the United States fleet at Pearl Harbor, President Franklin D. Roosevelt had to make a decision regarding how to handle the sizable Japanese-American population on the west coast. The problem was that while they weren't enemy combatants, the question of national loyalty still existed, as did the possibility that any one of them could sabotage already strained military efforts. Roosevelt's infamous solution to this problem was Executive Order #9066, which authorized the internment of between 110,000 and 120,000 Japanese Americans on the pacific coast. Roosevelt justified this authorization on a legal argument that the need to protect the country from espionage outweighed the individual rights of those that were interned. Though we cannot know exactly what laws Roosevelt discussed with his counsel, we can retrospectively examine the rules that have in the past given the president this power to act.
As Justice Hugo Black put it in his majority opinion on the case Korematsu v. United States, "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect"1. But this does not mean that restrictions can never be constitutional. On the contrary, they can if applied to the most rigorous level of scrutiny. The presence of an imminent danger may sometimes justify restrictions that might appear racially antagonistic.
The concept of imminent danger is one commonly used in the study of emergency powers. Imminent danger is an immediate threat of harm, which varies depending on the context in which it is used2. In the case of Presidential Power, it carries with it the implication that this threat is to near to wait for congressional input, and requires the immediate action of the executive. All questionable executions of Presidential Power have had this principle at their root, and so to explain Hirabayashi and Korematsu, we must understand the legal bases on which this implied power is derived.
