Hirabayashi v. United States,
320 U.S. 81 (1943)

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U.S. Supreme Court

Hirabayashi v. United States, 320 U.S. 81 (1943)

Hirabayashi v. United States

No. 870

Argued May 10, 11,1943

Decided June 21,1943

320 U.S. 81


1. Where a defendant is convicted on two counts of an indictment and the sentences are ordered to run concurrently, it is unnecessary on review to consider the validity of the sentence on both of the counts if the sentence on one of them is sustainable. P. 320 U. S. 85.

2. Pursuant to Executive Order No. 9066, promulgated by the President on February 19, 1942, while the United States was at war with Japan, the military commander of the Western Defense Command promulgated an order requiring, inter alia, that all persons of Japanese ancestry within a designated military area "be within their place of residence between the hours of 8 p. m. and 6 a. m." Appellant, a United States citizen of Japanese ancestry, was convicted in the federal District Court for violation of this curfew order.


(1) By the Act of March 21, 1942, Congress ratified and confirmed Executive Order No. 9066, and thereby authorized and implemented such curfew orders as the military commander should promulgate pursuant to that Executive Order. P. 320 U. S. 91.

(2) It was within the constitutional authority of Congress and the Executive, acting together, to prescribe this curfew order as an emergency war measure. P. 320 U. S. 92.

In the light of all the facts and circumstances, there was substantial basis for the conclusion, in which Congress and the military commander united, that the curfew as applied was a protective measure necessary to meet the threat of sabotage and espionage which would substantially affect the war effort and which might reasonably be expected to aid a threatened enemy invasion. P. 320 U. S. 95.

(3) The curfew order did not unconstitutionally discriminate against citizens of Japanese ancestry. P. 320 U. S. 101.

(a) The Fifth Amendment contains no equal protection clause, and it restrains only such discriminatory legislation by Congress as amounts to a denial of due process. P. 320 U. S. 100.

(b) The curfew order as applied, and at the time it was applied, was within the boundaries of the war power. P. 320 U. S. 102.

Page 320 U. S. 82

(c) The adoption by the Government, in the crisis of war and of threatened invasion, of measures for the public safety, based upon the recognition of fact and circumstances which indicate that a group of one national extraction my menace that safety more than others, is not to be condemned as unconstitutional merely because, in other and in most circumstances, racial distinctions are irrelevant. P. 320 U. S. 101.

(d) An appropriate exercise of the war power is not rendered invalid by the fact that it restricts the liberty of citizens. P. 320 U. S. 99.

(4) The promulgation of the curfew order by the military commander was based on no unconstitutional delegation of legislative power. P. 320 U. S. 102.

The essentials of the legislative function are preserved when Congress provide that a statutory command shall become operative upon ascertainment of a basic conclusion of fact by a designated representative of the Government. The Act of March 21, 1942, which authorized that curfew orders be made pursuant to Executive Order No. 9066 for the protection of war resources from espionage and sabotage, satisfies those requirements. P. 320 U. S. 104.


Response to questions certified by the Circuit Court of Appeals upon an appeal to that court from a conviction in the District Court upon two counts of an indictment charging violations of orders promulgated by the military commander of the Western Defense Command. This Court directed that the entire record be certified, so that the case could be determined as if brought here by appeal. See 46 F. Supp. 657.

Page 320 U. S. 83

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