Pressure on the Trigger Will Now Fire the Weapon: An Examination of how the Supreme Court, Congress, and Presidents Have Left the Legal Foundation for Executive Detention Akin to the World War II Era Internment of Japanese Americans Largely Intact

Authors

Kevan F. Jacobson

Abstract

Contrary to Chief Justice Robert's dicta, Trump v. Hawaii (2018) did not overrule Korematsu v. United States (1944) which upheld the exclusion of Japanese Americans from the West Coast during World War II. Korematsu and its related cases are still troublingly vital. Their expansive reading of the war powers justifying executive detention has been bolstered by the Court's cases addressing detainees held at Guantanamo Bay. Hamdi v. Rumsfeld (2004), which sanctioned the detention of a U.S. citizen pursuant to the Authorization for the Use of Military Force, exposed a fundamental weakness in the Non-Detention Act, the principal statutory barrier to executive detention. Today, despite the appalling history of the World War II era internment of Japanese Americans, the authority of the President to employ preventive executive detention remains both remarkably intact and remarkably broad. That authority should be restrained by appropriate amendments to the Non-Detention Act.

Recommended Citation

Kevan F. Jacobson, Pressure on the Trigger Will Now Fire the Weapon: An Examination of how the Supreme Court, Congress, and Presidents Have Left the Legal Foundation for Executive Detention Akin to the World War II Era Internment of Japanese Americans Largely Intact, 24 Rich. Pub. Int. L. Rev. 27 (2021).
Available at: https://scholarship.richmond.edu/pilr/vol24/iss2/4