1. Section B – Class 4

2.  Hypothetical Review  Group Discussion of Hypothetical  Korematsu v. United States  Legislative Branch

3.  Time Frame: ◦ It is September 12, 2001 ◦ President Bush has just been informed that all of the hijackers who attacked on the previous day are Muslims  Facts: ◦ It is unclear with whom they were working, and if more attacks are planned in the immediate future ◦ Very high likely hood that the next attacks will be initiated by Islamic extremists from the Middle East  Question: ◦ Would the President of the United States have the power to issue an Executive Order detaining people because they are Muslim or because they look like they are from the Middle East?

4.  Task: ◦ Figure out into which part of the Tripartite Formula this executive action fits ◦ Figure out whether the Supreme Court would allow that action to happen  Issue: ◦ Would the President have the power to detain individuals because of their race, religion or national origin?

5.  Congress authorizes executive action: ◦ Most likely to find has power  Authority of executive + authority of legislature ◦ So long as does not violate other laws or the Constitution  Congress forbids action, or authorizes different course of action ◦ Least likely to be allowed ◦ Only if a part of executive authority that can’t be checked  For example, commander-in-chief powers  No Congressional action, and Congress/Constitution gives powers to each ◦ “Zone of Twilight”: court looks to facts surrounding the case

6.  Does your answer to the hypothetical change if you don’t put yourself in the time frame of the days after the September 11 th attacks?  If you changed your answer, can you list any specific reasons as to why it matters whether we were attacked a few days ago as opposed to attacked 9 years ago?

7.  Facts: ◦ Korematsu remained in his town of San Leandro, California ◦ Violated Civilian Exclusion Order No. 34 of the U.S. Army after May 9, 1942  Issue: ◦ Can the government create laws that infringe on the rights of only a certain class of people? ◦ Can the government force citizens to report to relocation centers?  Decision: ◦ Need to protect against espionage outweighed Korematsu's rights ◦ Internment camps are justified during circumstances of "emergency and peril.“ ◦ The Hirabayashi Precedent ◦ Court defers to military - takes military commander’s word  No independent inquiry or test

8. “It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers-and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies -we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders-as inevitably it must-determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot-by availing ourselves of the calm perspective of hindsight-now say that at that time these actions were unjustified.”  Regardless of the true nature of the assembly and relocation centers-and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term  Korematsu was not … because of hostility to him or his race. … all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally,  There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short.

9.  What do you think about Korematsu?  Holmes v. California Army Nat. Guard ◦ District Court Decision – Northern District of CA  “is one of the Court's most embarrassing moments, and has been thoroughly repudiated by history.” D. Cole and W. Eskridge, Jr.”  Impact on Constitutional Law ◦ Established “strict scrutiny” standard for race-based actions by government ◦ Racial classifications almost always found unconstitutional because of this high standard

10. ChamberHouse of RepresentativesSenate Section 23 # of Members 435100 Membership / State Determined by population2 per state Qualifications 25 years old, 7-year U.S. citizen 30 years old, 9-year U.S. citizen Length of term 2 years6 years Vice President’s Power N/A “President of the Senate”: Can break ties in voting Specific Powers Initiate Spending Bills“Advise and Consent” Vacancies Each State Has Its Own Method

11.  How do bills become laws? ◦ What about the veto power?  Section 8 - Enumerated Powers ◦ Clause 1 - Taxes  collect taxes…to pay the debts and provide for the common defense and general welfare of the United States ◦ Clause 3 – Commerce Clause  To regulate Commerce with foreign Nations, and … several States ◦ Clause 18 – Necessary and Proper  To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers  Section 10 – Limits of State powers ◦ States cannot enter treaties, coin money, go to war