Professor Tribe Misunderstands the Legal History of Japanese Internment

 

Letter to the Editor

The Guardian

guardian.letters@theguardian.com

 

 

25 March 2025

 

 

Seth Barrett Tillman, Associate Professor

Maynooth University School of Law and Criminology

Scoil an Dlí agus na Coireolaíochta Ollscoil Mhá Nuad

NewHouse—#53

Maynooth University

Maynooth

County Kildare

Ireland W23 F2H6

(academic title & affiliation for identification purposes only)

 

RE: Laurence H Tribe, ‘Donald Trump is seeking to erase the United States as we know it,’ The Guardian (24 March 2025, 23:06 CET), <https://www.theguardian.com/commentisfree/2025/mar/24/trump-us-constitution>.

 

Professor Tribe wrote: “Trump invoked a 1798 statute [that is, the Alien Enemy Act] last used to intern Japanese Americans during the second world war . . . .” Professor Tribe’s statement is not correct.

President Roosevelt invoked the Alien Enemy Act to intern Japanese citizens, and not U.S. citizens, resident in the United States, who were not dual nationals. Roosevelt did intern U.S. citizens of Japanese descent. His legal vehicle for doing the latter was Executive Order #9066, which relied on the inherent powers of the presidency under Article II of the Constitution, the President’s powers as commander-in-chief, and the declared war between the United States and Japan. Contra Professor Tribe, Roosevelt’s decision to intern U.S. citizens of Japanese descent and Executive Order #9066 did not rely on the Alien Enemy Act of 1798.

In his March 24, 2025 federal trial court decision, Chief Judge James E. Boasberg explained: “During World War II, President Roosevelt used the [Alien Enemy] Act, variously, to apprehend, intern, and remove Japanese, Germans, and Italians residing within the United States.” (slip opinion at page 5 (emphasis added).) Those interned under the 1798 statute were foreigners, and citizens of nations at war with the United States; the internees were neither U.S. citizens nor dual nationals. Indeed, Section 1 of the 1798 statute expressly exempts dual nationals from the scope of the Act.

Is mise, le meas,

/s/

Seth Barrett Tillman

Seth Barrett Tillman, Letter Submitted to The Guardian, ‘Professor Tribe Misunderstands the Legal History of Japanese Internment,’ New Reform Club (Mar. 25, 2025, 7:25 AM), <https://reformclub.blogspot.com/2025/03/professor-tribe-and-alien-enemy-act-1798.html>; 

A Letter to the New York Times: A Response to Professor Shaw

 

Seth Barrett Tillman, Associate Professor

Maynooth University School of Law and Criminology

Scoil an Dlí agus na Coireolaíochta Ollscoil Mhá Nuad

New House—#53

Maynooth University

Maynooth

County Kildare

Ireland W23 F2H6

(academic title & affiliation for identification purposes only)

7 March 2025

 

Letters Editor

New York Times

 

RE: Professor Katherine Shaw, ‘There Is No Musk Exception in the Constitution,’ New York Times (4 March 2025).

 

Is Elon Musk an “officer of the United States” who President Trump must appoint via the Constitution’s Appointments Clause? Professor Shaw answers “yes.” She explains:

Mr. Musk appears to be wielding significant power, as evidenced by his presence at the administration’s first cabinet meeting last week. He was the first to speak after the president’s introduction. He boasted about pushing federal employees to respond to an email about their work, inveighed about the federal deficit and casually disclosed that his team had inadvertently canceled funding for Ebola prevention—an error he claims was quickly rectified, but may not have been. The email he mentioned appears to have been dashed off without advance warning even to the cabinet. (emphases added by Tillman)

Shaw indicated that the test for being an “officer of the United States” is that the purported officer exercises “significant power.” That is entirely wrong. As the Supreme Court explained in Buckley v. Valeo (1976), the test is that the purported officer exercises “significant authority” which binds the United States as a legal matter. There is a world of difference between Shaw’s position and the Supreme Court’s. Spouses (like Jill Biden, like Hillary Clinton) and White House confidants frequently exercise very real power through giving advice and recommendations to the President (or to cabinet members), but such advisors do not wield or purport to wield legal “authority.”

 

As to the other evidence Shaw puts forward—she speaks to where Musk was “presen[t],” who he “speak[s]” to, who and what he criticizes or “inveigh[s]” against. Not one thing on this list of Musk’s purported “significant powers” is remotely close to what the Supreme Court has determined to be unlawful when exercised by a nonofficer. And even if it were, the most that Shaw can muster is that it “appears” that Musk has acted unlawfully. Her best example is that Musk’s “team,” as opposed to Musk himself, purportedly canceled a contract on behalf of the U.S. government. But that might mean no more than Musk recommended that course of conduct and that the responsible secretary, under-secretary, or high level civil servant acted on Musk’s advice (which was only relied upon at the direction of the President). In those circumstances, Musk will have tendered a recommendation, not a final decision binding the government. That’s not enough—not nearly enough—to make him an “officer of the United States.”

 

Elected officials, indeed especially elected officials, get to speak and to hear others speak. Such freedom of thought, speech, and association is crucial to any common understanding of American democratic self-government. A not insignificant number of our citizens believe that First Amendment norms are under attack. I am sure it was inadvertent, but I have little doubt that Shaw’s editorial will only confirm their concerns and fears.

Seth Barrett Tillman

 

Seth Barrett Tillman, ‘A Letter to the New York Times: A Response to Professor Shaw,’ New York Times (posted: 7 March 2025, 11:09 AM), <https://reformclub.blogspot.com/2025/03/a-letter-to-new-york-times-response-to.html>; 

Some Proposed Reforms for the Legal System

 

 

1.    My forever war against current Blue Book practice.

When a judicial or administrative decision is cited, a parenthetical should identify the judge/justice/administrative-law-judge who authored the opinion (or indicate it was decided per curiam, etc).

2.    Blue Book (II).

Where a court has multiple members, editors should freely let authors indicate who joined the primary author. Instead, editors at student-edited and peer reviewed journals fight such practices at every step.

3.    Reporters.

Reporters of U.S. decisions should follow the better foreign practice. A report of a decision should indicate, in the margin, proceeding down the page, which judges/Justices joined each segment of an opinion.

4.   The Supreme Court of the United States. 

The office of the Clerk of the United States Supreme Court should follow the CM/ECF practice of every other federal court in the United States. When a filing is posted on the Court’s website, it should be stamped with the date-&-time which it was received/uploaded, and also given a unique docket number to ease referencing by third parties.

5.    Ex parte Merryman (1861).

Finally, journals should entirely refrain from citing Ex parte Merryman (1861) as a decision of the U.S. Supreme Court, or of the federal Circuit Court for the District of Maryland, or of the federal Court of Appeals for the Fourth Circuit, or of the federal District Court for the District of Maryland, or of the Supreme Court of Maryland (or any other Maryland state court). 

Merryman was simply a decision of Taney, C.J. in chambers. See Ex Parte Merryman, 17 F. Cas. 144 (1861) (No. 9487) (Taney, C.J., in chambers); 4 (pt. 1) A Collection of In Chambers Opinions by the Justices of the Supreme Court of the United States 1400–12 (Cynthia Rapp & Ross E. Davies, comps., 2004) (reporting Merryman), http://tinyurl.com/judtw8q. 

Seth Barrett Tillman, ‘Some Proposed Reforms for the Legal System,’ New Reform Club (Mar. 7, 2025, 4:53 AM), <https://reformclub.blogspot.com/2025/03/some-proposed-reforms-for-legal-system.html>; 

Lawfare Is Wrong, And Submitting Complaints About Judges Because Of Hurt Feelings Is Wrong Too

 

 

Judge Reyes is a judge on the United States District Court for the District of Columbia. Apparently, Reyes is human and makes mistakes, and from time to time, she says odd things while on the bench. Apparently, some lawyers feel wounded by her hurty words. Indeed, the U.S. Department of Justice has filed a complaint with the circuit’s Chief Judge. For background to this imbroglio, see: Josh Blackman, Did Judge Reyes Impose An Unconstitutional Religious Test?, Volokh Conspiracy (Feb. 23, 2025, 9:16 PM), <https://reason.com/volokh/2025/02/23/did-judge-reyes-impose-an-unconstitutional-religious-test/>.

Apparently, Reyes threatened to sanction Seth Waxman, a former Solicitor General, in regard to his representation of clients seeking relief against Trump’s orders removing several inspectors general. In separate litigation, Reyes had some questions directed towards a DOJ attorney who was defending Trump’s Executive Order involving persons in the military with gender dysphoria. Apparently, Reyes framed questions in terms of “What do you think Jesus would say” and “WTF.”

I think Reyes’ “WWJD” query is rather tepid. It could have been understood in the Judge’s mind, in the attorneys’ minds, and in the public mind in a number of different ways. I really doubt that the attorney in the courtroom struggled with this query. All the attorney had to say: “That’s a question our office had not been asked before, has not been addressed by this or other federal courts, and we think our attempting to answer would not accord with the interests of justice and with the example set by higher courts.”

I don’t think Reyes’ “WWJD” query is a First Amendment violation, much less a Religious Test Clause violation. Reyes made some people feel uncomfortable. Big deal: all questions do that. That is what they are supposed to do. Here the subject merely implicates religion. When we can, without giving up our principles and genuinely held beliefs, we should assume good faith and regularity by others, including federal judges appointed by the “other” party. When we can, without giving up our principles and genuinely held beliefs, we should make efforts to lower the political and judicial temperature. We should not engineer or suggest constitutional, judicial, or (other) ethical violations when there are none. The latter is just lawfare.

As to Reyes’ saying “WTF”—this is a trial court judge. Having clerked for one trial court judge who was known for being “hot” and fair while on the bench, I would think this is (again) too tepid to warrant a complaint to the circuit’s Chief Judge. Given that Reyes pressed Waxman (as a private attorney representing left-of-center clients) in strong terms, one might conclude that Reyes treats all alike—which is another reason to ignore (as a disciplinary matter), this judge’s harsh words directed at the Department of Justice attorney.

Finally, when a judge speaks his or her mind, that is transparency and a good thing. I have continually said much the same about Trump. The alternative is far worse. The alternative is that only the dim-witted and the slow-moving and the secretive will be on the bench. Having said all that, I will add that some judges’ conduct is wrongful, and that it is quite proper for aggrieved persons to use the several available processes to seek relief against actual judicial misconduct. I do not see any actual misconduct here.

 

Seth Barrett Tillman, Lawfare Is Wrong, And Submitting Complaints About Judges Because Of Hurt Feelings Is Wrong Too, New Reform Club (Feb. 24, 2025, 3:03 AM), <https://reformclub.blogspot.com/2025/02/lawfare-is-wrong-and-submitting.html>;

Are You Now Or Have You Ever Been A Federal Prosecutor?: A Response to Professor David G. Post

 

You can find Professor David G. Post’s Volokh Conspiracy post here: <https://reason.com/volokh/2025/02/17/more-on-the-outrageous-eric-adams-deal/>. Professor Post is critical of a prior blog post by Professor Josh Blackman for relying on a Tillman-authored 2022 article on Lawfare. Apparently, in his unaltered post, Professor Post characterized me as a “former prosecutor.” But I am not a current or former prosecutor. When his (Professor Post’s) error in reporting my biographical information was brought to his attention, Professor Post made a correction. Professor Post added that my (Tillman’s) not having been a prosecutor weakens the argument which I had put forward in my 2022 Lawfare article. Indeed, he affirms (in the comments above) that Professor Blackman’s reliance on my 2022 Lawfare article makes Blackman’s “argument . . . even more ridiculous” as I am “just a law prof[essor].”

As far as I know, Professor Post (like me) has never been a “former prosecutor.” On his publications, he lists his academic title: “Professor.” Oddly, Professor Post does not consider whether his not having been a former prosecutor weakens his argument. Why is that? 

Are standards only for people you disagree with? 

My own view is that whether or not, he (Professor Post) or I have been prosecutors, our arguments should be primarily judged on their merits. My article (unlike his Volokh Conspiracy post) was intensively reviewed by editors at Lawfare—many (if not most) of whom are former federal prosecutors. And Lawfare is hardly a playground for right-of-center voices, right? And my article has been cited and linked to. Has Professor Post’s Volokh Conspiracy post been cited?

For those of you who would like to review my 2022 Lawfare article, see Seth Barrett Tillman, Not a Panacea: Trump Disqualification and Plea Bargains, Lawfare: Hard National Security Choices (Sept. 20, 2022, 8:31 AM), <https://www.lawfaremedia.org/article/not-panacea-trump-disqualification-and-plea-bargains>, <http://ssrn.com/abstract=4194941>. 

Seth Barrett Tillman, Are You Now Or Have You Ever Been A Federal Prosecutor?: A Response to Professor David G. Post, New Reform Club (Feb. 19, 2025, 9:27 AM), <https://reformclub.blogspot.com/2025/02/are-you-now-or-have-you-ever-been.html>; 

I was promised a left-wing litigation Gotterdamerung ... and all I got was this lousy shirt

 

I had thought that shortly before, or on January 20, 2025—inauguration day, or within a short time thereafter, Democratic Party affiliated [i] progressive academics, [ii] think tanks, [iii] litigation shops, [iv] state attorneys general, and [v] other office holders . . . would bring lawsuits against Trump based on the Foreign Emoluments Clause and the Presidential (Domestic) Emoluments Clause.

It has been two weeks since Trump-47’s inauguration, and, as far as I know, not one such lawsuit has been filed.

I am surprised.

Moreover, I do not know why the President’s many well-resourced opponents have not gone down this path. After all, during Trump-45 they covered themselves with self-praise which a fawning media regularly regurgitated—even when they had very little substantive to show.

I could speculate on why we see the current inaction. And maybe one day, I will return to that issue and to speculate.

But right now, I think the bigger story is that the national press is not pressing these groups (i.e., the parties which had brought the Emoluments Clauses cases during Trump-45) for any rationale explaining their current inaction. And that tells you something about where our media is.

Seth Barrett Tillman, ‘I was promised a left-wing litigation Gotterdamerung ... and all I got was this lousy shirt,’ New Reform Club (Feb. 3, 2025, 2:44 AM), <https://reformclub.blogspot.com/2025/02/i-was-promised-left-wing-litigation.html>; 

Trump-47 Judicial Vacancies and Trump-47 Judicial Nominations (UPDATED)

At the start of Trump-47, on January 20, 2025, there were 45 federal judicial vacancies—all were Article III vacancies.

There are now 57 federal judicial vacancies, including, 56 Article III positions, one Article I position (USDC for the DISTRICT of the VIRGIN ISLANDS). 

There are 874 authorized Article III federal judicial positions, with 56 Article III vacancies, amounting to a 6% vacancy rate.

To date, Trump-47 has sent ZERO nominations to fill vacant federal judicial positions to the U.S. Senate.

                                    Mar. 21, 2025 vacancies              Mar. 21, 2025 Trump-47 nominations

US Supreme Court --                    0                                   0

US Federal Circuit Courts --        5                                    0

US Federal District Courts --     51                                    0

Article I Courts --                         1*                                  0

Total --                                        57                                    0

Vacancies include current and future vacancies as reported: current, <https://www.uscourts.gov/data-news/judicial-vacancies/current-judicial-vacancies>, and future <https://www.uscourts.gov/data-news/judicial-vacancies/future-judicial-vacancies>. 

Seth Barrett Tillman, ‘Trump-47 Judicial Vacancies and Trump-47 Judicial Nominations,’ New Reform Club (UPDATED: Mar. 21, 2025) (Jan. 29, 2025, 3:14 AM), <https://reformclub.blogspot.com/2025/01/trump-47-judicial-vacancies-and.html>; 

How My Most Recent Publication Ends

It is said that at the negotiations at Appomattox Courthouse—Lee and Grant were both frank and civil during the course of negotiating the surrender of Lee’s Army of Northern Virginia. Afterwards, Grant sent food to Lee to feed his (and, then, their) nation’s former enemy soldiers. Celebrations for Grant’s soldiers came only later—not while Lee’s soldiers remained present. Again, when the order of battle had ended, the first step towards national reconciliation was frank and civil discourse.

I do not think our present and future is or will be as difficult as was Grant and Lee’s. But we too have to think about national reconciliation. It seems to me that the first steps in that direction involve frank and civil discussion, absent hyperbole, and absent name calling. If federal and state judges and legal academics are not up to that task, then that is just another institutional and cultural problem crying out for reform. Likewise, our domestic law schools are supported by taxes, tuition, and donations. If universities and academics only further burden American society by casting aside our free speech traditions and actively engaging in just another front in our culture wars, then wider society might very well choose to withhold support. Perhaps this process has already begun? 

Seth Barrett Tillman, ‘How My Most Recent Publication Ends,’ New Reform Club (Jan. 28, 2025, 11:09 AM), <https://reformclub.blogspot.com/2025/01/how-my-most-recent-publication-ends.html>;

Musk and the Neurodivergent

 

Seth Barrett Tillman, ‘Musk and the Neurodivergent,’ New Reform Club (Jan. 23, 2025, 2:50 AM), <https://reformclub.blogspot.com/2025/01/musk-and-neurodivergent.html>; 

<https://x.com/SethBTillman/status/1882023749463244930>; 

Part II—Professor Shugerman (et al) vs. Professor Prakash (et al)

 

In my prior New Reform Club post, I wrote:

[Professor] Shugerman has taken the position that Prakash has seriously erred—i.e., that Prakash’s interpretations have been wrong all along, and that he (Shugerman) has demonstrated that wrongness, and that Prakash has refused to retract or to sufficiently respond. For this alleged wrong, Shugerman put forward:

If “originalism” is a serious academic enterprise, are there any consequences for originalist scholarship that repeatedly misused, misrepresented, or made false claims about the historical record?

…. Is there accountability for originalists who make false historical claims?

Jed Shugerman, The Misuse of Ratification-Era Documents by Unitary Executive Theorists, Mich. J. L. Reform (2025) (last revised on SSRN on Jan. 10, 2025) (manuscript at 25), <https://ssrn.com/abstract=5070241>; id. at 1 (same).

Now, a new version of Shugerman’s Michigan Journal of Legal Reform draft article has been posted on SSRN, with a January 21, 2025 date. In this version, on the very last page of his draft, Shugerman states:

 

*An earlier version of this essay asked an open-ended question: “If originalism is a serious academic enterprise, are there consequences for originalist scholarship that repeatedly misused, misrepresented, or made false claims about the historical record?” In listening to critics and feedback, I acknowledge it is premature to ask this question. [Shugerman, manuscript at page 24]

 

Who the critics were and what their feedback was is not stated.

 

As to Jed Handelsman Shugerman & Ors, Presidential Revisionism, Slate (July 17, 2017, 5:42 PM), <http://tinyurl.com/y7qaabr4>. I see no update to this publication at all. A cheeky person might ask:

If historical research is a serious academic enterprise … are there any consequences ….

But I am not so cheeky.

 

Seth Barrett Tillman, ‘Part II—Professor Shugerman (et al) vs. Professor Prakash (et al),’ New Reform Club (Jan. 21, 2025, 6:48 AM), <https://reformclub.blogspot.com/2025/01/part-iiprofessor-shugerman-et-al-vs.html>;

Seth Barrett Tillman, ‘Professor Shugerman (et al) vs. Professor Prakash (et al),’ New Reform Club (Jan. 17, 2025, 9:28 AM), <https://reformclub.blogspot.com/2025/01/professor-shugerman-et-al-vs-professor.html>;

They Say It Is 1933?

 

They say it is 1933.

If they believed what they have said, then …

 

[i] Have they bought a condominium, bungalow, or timeshare abroad?;

[ii] Have they moved SOME of their assets into non-U.S.-based financial instruments?;

[iii] Have they moved SOME of their assets abroad?;

[iv] Have they purchased any foreign currency (e.g., Swiss Francs, Euros, Canadian Dollars) for use in the coming emergency?;

[v] Have they prepared an easy to hide, store, and carry cache of travel and other important personal and family documents (e.g., passports, birth and marriage certificates, diplomas, evidence of bar and other professional memberships, a current vita, and vaccination and other medical records)?;

[vi] Have they physically moved abroad, permanently or temporarily (until the U.S. situation is clarified)?;

[vii] Have they maintained and sought to develop family and other personal, religious and charitable, and professional contacts abroad that could be helpful in an emergency?; 

[viii] Have they, at the very least, explored becoming dual citizens?;

[ix] Have they, at the very least, explored where they can visit and/or settle abroad, with what identification and travel documents, and, most importantly, how quickly they can escape the U.S. authorities (i.e., by air, sea, train, bus, or automobile)?; 

[x] And, importantly, have they, at the very least, explored where abroad they, and other family members, have a right to work or could obtain a work permit in short order?;

[xi] And—just one more—have they bought a gun, and started taking shooting lessons? 

If the answer to each and every question above is “no,” then they do not believe it is 1933. It is just all talk for political effect and costless virtue signaling for a particularly receptive audience. And the political effect and size of that receptive audience is declining. Likewise, if they continue to discuss the lawfulness or morality (in the sense of political obligation) of a U.S. military coup to stop their political opponents (i.e, Trump) ... and if they hold these discussions in public, e.g., on a listserv that is publicly accessible, then they do not believe it is 1933, and they do not believe that they are living in a fascist dictatorship.

PS: If they hold U.S. citizenship and they also already hold citizenship in a foreign country (that is, other than the U.S.), have they explored to whom by marriage, birth, or otherwise they can legally share or transmit that foreign citizenship to—or otherwise share the benefits and protections of such foreign citizenship? If the answer, is “no, they have not explored . . . ,” then . . . .

PPS: Have they made any efforts and encouraged family and friends to make some substantial efforts to learn a widely-spoken foreign language? If the answer, is “no, they have made no such efforts . . . ,” then . . . . 

Seth Barrett Tillman, ‘They Say It Is 1933?,’ New Reform Club (Jan. 20, 2025, 3:36 AM), <https://tinyurl.com/zv5c2vcd>;

 

Impeachable Offenses?

 

Is President BIDEN’s announcing that a proposed constitutional amendment is part of the actual Constitution when it has not been certified by those charged with doing so and announcing such contra his own Office of Legal Counsel’s advice, a lie? Is his announcement an impeachable offense?

If the Vice President and/or any federal statutory officers (e.g., members of the cabinet, etc) advised President BIDEN to take this course of action, does their advice subject them to impeachment, trial, conviction, removal, and/or disqualification?

If they are bar members, can they be sanctioned for offering negligent legal advice or for recklessly or knowingly giving advice to commit an illegal act?

Is this an opportunity for the U.S. House of Representatives to assert the controverted power of “late” impeachment—that is, impeaching a former federal (elected) official or former federal (appointed) officer? Or, must the House impeach BIDEN prior to the end of BIDEN’s term? And in regard to federal statutory officers, must the House impeach such officers while they remain in their position, but not afterwards?

If BIDEN actually believes that the proposed Equal Rights Amendment is part of the U.S. Constitution, should he not order the archivist to certify its ratification? Is BIDEN’s failure to order the archivist to certify the ERA and/or Biden’s failure to remove the archivist itself an impeachable offense for a failure to TAKE CARE that the law be faithfully executed? Take Care Clause, U.S. Const. Article II, Section 3.

 

Seth Barrett Tillman, ‘Impeachable Offenses?,’ New Reform Club (Jan. 19, 2025, 4:24 AM), <https://reformclub.blogspot.com/2025/01/impeachable-offenses.html>;