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>;