When Birthright Citizenship was last "Reconsidered": REGAN v. KING and Asian Americans Part V

The case of Regan v. King was set down for oral argument before the 9^th Circuit Court of Appeals sitting “en banc” (that is, by all seven judges). Ironically, the day chosen for the hearing was February 19, 1943, the very same day the Court considered the appeals in the "Japanese internment" cases of Korematsu, Hirabayashi, and Yasui, in which Nisei plaintiffs challenged Executive Order 9066. US Webb made a 30-minute presentation of his appeal. He again stated that “without committing treason” it was his contention that Wong Kim Ark had been “erroneously decided.” Having presented his case, Webb left the podium. Walter Dodd then rose to take the defense case, with A.L. Wirin waiting to present the JACL position afterwards. However, no sooner had Webb completed his argument than the judges, instead of taking a recess, put their heads together in hasty conference.After a few minutes, Judge Curtis proclaimed on behalf of the court, “It is not necessary for the court to hear further argument. The decision of the lower court is sustained.” The Court then immediately called the case of Hirabayashi and Korematsu, which occupied the rest of the day’s proceedings.

The Native Sons continued their campaign for exclusion, and planned an appeal to the U.S. Supreme Court. Their petition was publicly supported on the floor of Congress by Tennessee Senator Tom Stewart, who had previously introduced legislation to confine Japanese Americans in military prisons for the duration of the war. calling for the Court to take jurisdiction of the case and overturn the “unsound” Wong Kim Ark decision. Japanese in the United States, he insisted, “Haven’t got the American ideal, and never can have” since treachery, deception and arrogance are “inborn characteristics of the race." U.S. Webb’s petition for certiorari to the Supreme Court was filed on April 28, 1943. However, on May 17, less than a week after it heard argument in the Hirabayashi and Yasui cases, the High Court refused the petition. The Regan case was dead.

The failure of the lawsuit in Regan preserved the rights of all Americans to birthright citizenship from challenge. An important share of credit for the defense of basic rights must go to the JACL, and to the NAACP lawyers who anchored its legal team. (Indeed, the Nisei editor of the Poston Chronicle, a WRA camp newspaper, declared that the intervention of the JACL in the Regan case, and especially the presence of the Black attorneys, was even more significant than the result). Both by their presence and their arguments, the African Americans dramatized the central role of racist bigotry in the movement to erase birthright citizenship.

Still, even if the judges were unanimous in their decisions,  it was a narrow victory. If either the trial court or the 9^th Circuit Court of Appeals had ruled the other way, it is difficult to know what would have ensued, and whether there would have been a popular movement to strip citizenship from Asian Americans. Today, when there is serious talk, in Arizona and elsewhere, of stripping citizenship from native-born children of undocumented immigrants, the case provides an essential historical reminder and constitutional reference point.

Comments

[TJ]

Bit anti-climatic, isn't it? I mean, the appellant conceded there was an adverse Supreme Court decision directly on point, so the lower court decision seems a foregone conclusion. The real action is getting the Supreme Court to take the case, and this narrative just skips right over that part.

[Matt Lister]

Thanks for these very interesting and informative posts- I knew of the cases but didn't know much about the details behind them. Learning more makes me feel more strongly about the claim I made in my first blog-post here, that the U.S. in particular has good reason to maintain a strong jus soli rule:

http://www.thefacultylounge.org/2010/07/should-the-us-maintain-its-strong-jus-soli-rule.html

[Greg Robinson]

Actually, it was a bit of a surprise that the Supreme Court did not take the case. Hugh MacBeth was evidently quite suprised that the Court denied cert. it is true that, in strictly legalistic terms, the case has not been a powerful precedent. Nevertheless, I think that it is a mistake to say that, because the cases were not argued before the Supreme Court, they lack value as historical guideposts. Rather, I agree with Matt Lister that the cases remind us why the jus soli rule is worth defending.

[coach outlet]

That is too cool! thanks.*