IN SUPPORT OF PETITIONERS-APPELLANTS: W.M.M., et al., Petitioners-Appellants, v. Trump et al, Respondents-Appellees
BRIEF OF AMICUS CURIAE LEGAL HISTORIAN ERIC L. MULLER IN SUPPORT OF PETITIONERS-APPELLANTS
TABLE OF CONTENTS
I. STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE
II. SUMMARY OF ARGUMENT
III. ARGUMENT
A. False Allegations of a Threatened Coastal Invasion Were Central to the Government’s Defense of Its Curfew and Mass Exclusion Orders in Hirabayashi as well as to the Supreme Court’s Approval of the Curfew.
B. Contemporaneous Military Assessments Refuted the Claim of a Threatened Invasion.
1. Army Intelligence (G-2) Reports
2. Views of Military Leadership
C. The Court Should Heed the Lesson of Hirabayashi
TABLE OF AUTHORITIES
Cases
Hirabayashi v. United States, 320 U.S. 81 (1943)
Korematsu v. United States, 323 U.S. 214 (1944)
Miller-El v. Cockrell, 537 U.S. 322 (2003)
Statutes
Alien Enemies Act, ch. 66, 1 Stat. 577 (1798) (codified as amended at 50 U.S.C. §§ 21-24 (2018))
Civil Liberties Act of 1988 § 4202(a), Pub. L. No. 100-383, 102 Stat. 903, 904 (codified at 50 U.S.C. § 4212(a) (2018))
Briefs and Court Documents
Brief for the United States in Hirabayashi v. United States, May 8, 1943, 1943 WL 71885
Respondent’s Opposition to Petitioners’ Motions for a Preliminary Injunction and for Class Certification, J.A.V. v. Trump, No. 1:25-cv-00072 (S.D. Tex. Apr. 22, 2025)
Books and Secondary Sources
Stetson Conn et al., Guarding the United States and its Outposts (2000)
Eric L. Muller, American Inquisition: The Hunt for Japanese American Disloyalty in World War II (2008)
Eric L. Muller, Free to Die for Their Country: The Story of the Japanese American Draft Resisters in World War II (2001)
Eric L. Muller, Hirabayashi and the Invasion Evasion, 88 N.C. L. Rev. 1333 (2010)
Eric L. Muller, Lawyer, Jailer, Ally, Foe: Complicity and Conscience in America’s World War II Concentration Camps (2023)
Archival Materials
G-2 Estimate No. 17, 4:00 PM Dec. 22 to 10:00 PM Dec. 23, Records of the U.S. Army Ground Forces, RG 499, Entry 128, National Archives at College Park, Md.
G-2 Periodic Report, Records of the U.S. Army Ground Forces, RG 499, Entry 125, National Archives at College Park, Md.
G-2 Periodic Report, 12:00 Noon Feb. 14, 1942, Records of the U.S. Army Ground Forces, RG 499, Entry 125, National Archives at College Park, Md
G-2 Periodic Report, 12:00 Noon Feb. 7, 1942, Records of the U.S. Army Ground Forces, RG 499, Entry 125, National Archives at College Park, Md
G-2 Periodic Report, 12:00 Noon Jan. 31, 1942 , Records of the U.S. Army Ground Forces, RG 499, Entry 125, National Archives at College Park, Md
Letter from Col. Ralph G. Smith, Exec. Officer, Assistant Chief of Staff, G-2, to Assistant Chief of Staff, War Plans Div. (Jan. 30, 1942), RG 165, WPD Gen. Correspondence, Box 254, No. 4544-43, National Archives at College Park, Md.
Letter from Field Marshal J.G. Dill, British Army, to Gen. George C. Marshall, Chief of Staff, War Dep’t (Feb. 20, 1942), microformed on Reel 27, Item 1157 (Marshall Center Microfilm)
Letter from Lt. Gen. L.J. McNair, U.S. Army, to Commanding Gen., Field Forces (Dec. 23, 1941), microformed in RG 165, Item 4612-5, Box 259, National Archives at College Park, Md.
Letter from Sen. Rufus C. Holman to Sen. Hiram W. Johnson (Feb. 9, 1942), microformed on Records of the Japanese Evacuation and Resettlement Study, Reel 4, Frames 283b-284a (Bancroft Library)
Memorandum from Gen. Dwight D. Eisenhower, Assistant Chief of Staff, War Dep’t, to Field Marshal J.G. Dill, British Army (Feb. 20, 1942), microformed on Reel 27, Item 1157 (Marshall Center Microfilm)
Memorandum from Sen. Homer T. Bone (Feb. 4, 1942), microformed on Records of the Japanese Evacuation and Resettlement Study, Reel 4, Frame 277b (Bancroft Library)
Telegram from Gen. George C. Marshall, Chief of Staff, U.S. Army, to Commanding Officer, Barksdale Field (Jan. 18, 1942), microformed on Reel 17, Item 706 (Marshall Center Microfilm)
Western Sea Frontier Gen. Order No. 1-43 (Dec. 24, 1942), RG 499, Entry 118, National Archives at College Park, Md.
I. STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE
Amicus curiae Eric L. Muller is the Dan K. Moore Distinguished Professor of Jurisprudence and Ethics at the University of North Carolina School of Law and a leading scholar of the wartime treatment of Japanese Americans during World War II. He is the author of several books on the subject, including Free to Die for Their Country: The Story of the Japanese American Draft Resisters in World War II (2001), American Inquisition: The Hunt for Japanese American Disloyalty in World War II (2008), and Lawyer, Jailer, Ally, Foe: Complicity and Conscience in America’s World War II Concentration Camps (2023), as well as numerous scholarly articles, including Hirabayashi and the Invasion Evasion (2010). That article forms the foundation of this submission, which presents archival evidence that the U.S. government’s justification for the 1942 racial curfew and mass exclusion of Japanese Americans—the threat of a Japanese invasion of the West Coast—was refuted by contemporaneous but classified military intelligence and planning. Professor Muller offers this brief to provide the Court with historical perspective on the dangers of uncritically accepting executive claims of “invasion” in the application of the Alien Enemies Act.[1] He has an interest in ensuring the sound development of the law in this field and in avoiding decisions that repeat the tragedy of rights violations enabled by unexamined and unjustified executive assertions of invasions of U.S. territory.[2]
[1] Alien Enemies Act, ch. 66, 1 Stat. 577 (1798) (codified as amended at 50 U.S.C. §§ 21–24 (2018)).
[2] This brief was not authored in whole or in part by counsel for any party, and no person or entity other than amicus curiae or its counsel has made a monetary contribution toward the brief’s preparation or submission.
II. SUMMARY OF ARGUMENT
The government invokes the Alien Enemies Act in this and other current cases on the strength of what it depicts as an “invasion or predatory incursion” of the United States by Venezuela in the guise of a criminal gang, Tren de Aragua. It offers little in the way of evidence to support this claim. Instead, it argues “there is no basis for second-guessing the Executive’s policy judgment that … an ‘invasion’ or ‘predatory incursion’ is occurring.”[3]
This is not the first time the government has come to the courts with a thinly sourced story about invasion. In the litigation leading to the Supreme Court’s discredited decision in Hirabayashi v. United States,[4] the government defended the dusk-to-dawn curfew imposed on the West Coast’s Japanese Americans and their subsequent mass removal in the spring of 1942 as key elements of a plan to defend the coast against a serious threat of an invasion by Japanese military forces.
In reality, curfew and removal were not part of any plan to meet a threatened invasion. There was no such threat. Military records, classified at the time but now available, reveal that the War Department and the Army’s top intelligence branch repeatedly and consistently assessed that no invasion threat existed at the time curfew and removal were ordered. Nevertheless, the Supreme Court credited the government’s narrative about such a threat and upheld those racially discriminatory measures. The result was a grave constitutional error and enduring harm to well over one hundred thousand Japanese American citizens and Japanese resident aliens.
The government’s consequential misrepresentations about the threat of a Japanese invasion in the Hirabayashi litigation provide a cautionary lesson about the present claim of enemy invasion. Courts facing extraordinary, unscrutinized “invasion” claims should heed this historical warning.
[3] Respondent’s Opposition to Petitioners’ Motions for a Preliminary Injunction and for Class Certification at 12, J.A.V. v. Trump, No. 1:25-cv-00072 (S.D. Tex. Apr. 22, 2025).
[4] 320 US. 81 (1943)
