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June 7, 2006
Jerry Kang: Dodging Endo
On the other hand, I recall Endo not as nemesis to Korematsu, but as accomplice. Indeed, Endo was the final maneuver in a complex strategy that the Supreme Court deployed in order to stay out of the military's way; but never to officially approve of the internment; and finally, to provide "plausible deniability" to the political branches. The core point is that Endo "won" in a way that absolved the political branches of any responsibility for the civil rights disaster. Instead of ruling on constitutional grounds, the Court ingeniously decided the case on administrative law. The Supreme Court held -- with a straight face -- that the War Relocation Authority (WRA), which operated the camps with millions of dollars of federal funds, was never actually "authorized" by President Roosevelt or Congress. In other words, the WRA was a rogue agency, acting ultra vires. This was why Endo had to be freed. Neither President nor Congress was at fault.
Why does this interpretive dispute matter? First, in the law reviews, Endo is being remembered more triumphantly than Gudridge intended, as an example of the Supreme Court checking Executive Branch excesses, even during times of war. Nothing could be further from the truth. The Supreme Court should be blamed for its machinations, not praised for its backbone.
Second, in judicial opinions, Endo is being remembered without irony. Endo is now being cited for the "clear statement rule"--that in order to detain American citizens, the political branches must authorize such detention unambiguously. The argument goes like this: Just as the internment was not authorized back during World War II, see Endo, detention has not been authorized in the global war on terror. But this reinscribes a falsehood. FDR and Congress did authorize the internment camps. It's just that the Court declined to see to this inconvenient fact.
As a matter of history, Endo should be understood as dodging accountability. As a matter of doctrine, Endo should be treated in the same way that we treat Korematsu. Even nonlawyers know that the Korematsu case created the foundations of "strict scrutiny," which remains a critical component of our equal protection jurisprudence. In other words, as an abstract legal rule, Korematsu remains good law. However, how this rule was applied to the facts is universally disdained. Endo's abstract legal rule, demanding a clear statement, can also be preserved as good law. However Endo's application to the facts in World War II should be sharply rejected as deceitful.
If we don't, what will prevent the use of Endo to dodge accountability again? After horrific tortures in some detention camp are brought to light, low-level soldiers will be prosecuted but high-level officials will be absolved. After all, there was never any "clear statement" authorizing quite this sort of barbarism. See Endo.
For the full argument, see my "Denying Prejudice" (UCLA L. Rev. 2004) and "Watching the Watchers" (Law and Contemp. Probs. 2005), both available at: http://jerrykang.net/Scholarship/scholarship.htm.
Posted by Eric at June 7, 2006 8:56 AM
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