Judicial Deference

Executive power is a broad outline of powers given to the President to fulfill his duties. During times of war or conflict these powers are often tested. Presidents usually use them to their fullest potential, in ways that may be seen as overstepping their power. While the Judiciary analyzes their actions to make sure they are within their constitutional power. When we look back at cases we sometimes do not understand the Supreme Court’s decision in these instances, because it clearly seems that the power is being overstepped. Often times in these situations there are outside threats or national emergencies that are greater than the threat of the government. So the Supreme Court sides with the president, which is called judicial deference.

We can look at World War II and the steps the government took to ensure safety of the homeland after the bombing of Pearl Harbor by the Japanese. At first there were curfews set for people of Japanese descent to not be out after a certain time. When these were not working the government decided to take it a step further and placed all Americans of Japanese descent in internment camps, taking them away from them everything the owned. At the time this was seen as being necessary in order to protect the country of invasion and attack. It was even upheld by the Supreme Court in Korematsu v The United States (1944), where the majority opinion stated that this was not a racial discrimination but that we were at war and it is hard to know who to trust.

Now we look back at these internment camps and we often forget that we did that to our own people. It is often overlooked in history classes and textbooks because I think it is something we look back on and realize was wrong. There is no way that it wasn’t a racial discrimination, but at the time the fear of invasion was greater than protecting the rights of these Japanese American citizens.

We saw this partly creep up after the terrorist attacks back in 2001 with racial discrimination and racial profiling of men and women from the Middle East and of Muslim religion. At the time the country was mostly in agreement that something needed to be done immediately. But then, a couple years later we pull back and want less government influence

Overall when there is an external threat on the safety of our country, we see an expansion of powers for the president in his role as Commander in Chief. I think this is one of the unique parts of our government which allows flexibility to adjust to what is going on at the time. If the powers were strictly confined and limited then our history may have looked a lot different.

An article from The Yale Law Journal that goes into more detail is “Disastrously Misunderstood: Judicial Deference in the Japanese- American Cases” by Jonathan Justl, which reviews government actions during national emergencies.

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One thought on “Judicial Deference

  1. Pingback: Weekly Round-Up #5: Moving Right Along | Lyco Constitutional Law

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