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>;