And you didn't flush baby wipes? No. Dental floss? No. Cat litter? No, no. Hmm. I just can't understand what... Hang on a moment. Yep, we'll get someone out to your tenant and get that looked at. With DirectLine's landlord emergency cover added to your landlord insurance, whether your tenants block the toilet or break a door lock, we'll get you from problem to solution as quickly as possible. DirectLine, we're on it.
Landlord insurance underwritten by UK Insurance Limited. Residential properties only. Cover up to £1,500 per callout. So it is Thursday, October 24th at 10.45am. What are we going to be talking about today? All right, Roman. In the 1940s, Art Shibayama was a 13-year-old kid living with his family in Lima, Peru. And his family, like many other Japanese nationals, had immigrated to Peru for a better life. And the Shibayamas did become successful. Art's parents ran a textile importing business.
His grandparents operated a department store, so they were a prosperous Japanese Peruvian family. That is until March 1st, 1944. That's when Peruvian police arrived at the Shibayama home looking to round up the family, including the kids, and hand them over to American soldiers. The Shibayamas were eventually put on a U.S. Army transport ship, the Cuba, that would take them and dozens of other Peruvian Japanese families to the United States.
The United States was at war, and the American government was looking for potentially dangerous persons to be sent to the United States from Latin America, especially those who were ethnically Japanese. And before setting foot in the United States, these Peruvian Japanese were stripped of their passports, and then they were taken to internment camps. The Shibayama family was shipped to an internment camp in Crystal City, Texas.
where they were supposed to remain until the end of the war. There was a 10-foot fence surrounding the camp. 80 families shared one community bathhouse. And the school in the internment camp taught the Shibuyama children lessons in Japanese. but they only spoke Spanish. Most people are familiar with the internment of Japanese Americans during World War II. Two months after the Japanese attack on Pearl Harbor on December 7, 1941,
President Roosevelt issued Executive Order 9066. That order permitted the forced internment of about 120,000 Japanese Americans from the West Coast. They sent these families to what were called relocation camps behind barbed wire guarded by military police. And it was the internment of Japanese Americans that led to the Supreme Court's 1944 decision in Korematsu v. the United States. In Korematsu, the Supreme Court upheld the forced relocation of Japanese Americans.
The Korematsu decision was later described by Chief Justice Roberts in 2018 as gravely wrong on the day it was decided and as having no place in the Constitution. But most people don't know about this other program of internment that swept up Art Shibayama's family and detained them in camps too. During World War II, about 3,000 people were sent from Latin America to the United States for internment. More than two-thirds of them were of Japanese ancestry, and most of the Japanese were from Peru.
And just like with the Japanese Americans who were sent to internment camps in the United States, there was little evidence that any of these Japanese Peruvians taken from their homes were saboteurs or spies. Instead, they were teachers, small business owners, tailors. Some of them had Peruvian wives and Peruvian-born children. Why were they taken to the United States?
Mostly racism from a Peruvian government that wanted them expelled and an American government that considered them a hemispheric threat. Why did the federal government think it could detain Art Shibayama and hundreds like him? Because the Roosevelt administration considered them enemy aliens.
In October of this year, Donald Trump told his supporters at a campaign rally in Colorado of his intention to launch a plan called Operation Aurora. Trump said he was going to send Border Patrol, and federal law enforcement officers to arrest and deport every last illegal alien gang member until there is not a single one left in this country. Could Trump do that if he is re-elected in 2024?
And what does Operation Aurora have to do with the story of Art Shibayama and the hundreds of other interned Japanese Peruvians whose stories have been mostly forgotten? Time to find out. Let's do it. Thank you. This is what Roman Mars can learn about Con Law, an ongoing series of indeterminate length and sporadic release where we look at Trump's threat of mass deportations by invoking the broad and terrifying powers of the Alien Enemies Act and use it to...
examine our constitution like we never have before. Our music is from Doomtree Records. Our professor and neighbor is Elizabeth Jo, and I'm your fellow student and host, Roman Mars. And you didn't flush baby wipes? No. Dental floss? No. Cat litter? Ah, no, no. Hmm, I just can't understand what... Hang on a moment.
Yep, we'll get something out to your tenant and get that looked at. With DirectLine's landlord emergency cover added to your landlord insurance, whether your tenants block the toilet or break a door lock, we'll get you from problem to solution as quickly as possible. DirectLine, we're on it.
Landlord insurance underwritten by UK Insurance Limited. Residential properties only. Cover up to £1,500 per call-out. So why did Roosevelt think he had the right to imprison these Peruvian citizens of Japanese descent? Because of 50 U.S. Code 21, also known as the Alien Enemies Act. So, Robin, why don't you read part of the act?
Okay, it reads, Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, All natives, citizens, denizens or subjects of the hostile nation or government shall be liable to be apprehended, restrained, secured and removed as alien enemies.
Now, this act dates back to the 18th century. And in the 1790s, the United States seemed to be on the brink of war with France. And the Federalist Party, which controlled Congress, was concerned that there were French aliens. That's just another word for non-citizens. in the United States who would be primarily loyal to the French, not the United States. So Congress enacted the Alien Enemies Act of 1798 as part of a group of federal laws known as the Alien and Sedition Acts.
But only the Alien Enemies Act is still good law today. And so what were they trying to get at with the acts? Well, the Alien Enemies Act gives the president the power to detain or deport a large category of aliens or non-citizens, and that includes all natives, citizens, denizens, or subjects of a hostile nation. or government. And the act makes no distinction between non-citizens who are lawfully within the United States and those who are not.
Nor does the act require that the president prove that any individual non-citizen actually poses a threat to national security. Instead... The act allows the president to target these alien enemies without a hearing, just based on the fact that they are from an enemy nation.
And the idea of the act is to provide the president of the United States the power to prevent foreign spying and sabotage during wartime. And can he do this any old time he wants to? I mean, when is he allowed to sort of like act on this? Well, the law itself says that the president can use the powers under the act in time of declared war.
or when a foreign government threatens or actually engages in what the Act calls an invasion or a predatory incursion against the United States. So that means a war, which only Congress has the constitutional authority to declare. or an invasion, which the president seems to have the sole authority to determine. And so the act has been used a couple of times during the War of 1812, World War I, and World War II.
I mean, as loathsome as I find this all, I find it particularly like strange to imagine Peruvian citizens being somehow roped into this act. Can you explain that part of it? Yeah, it's a very strange story. First of all, the Alien Enemies Act doesn't explain why these foreign nationals could have been taken by the US military from their home countries. It's not exactly clear what legal authority the United States possess.
to force these unwilling Japanese Peruvians to get on ships and then to be sent to these internment camps. These people weren't trying to enter the United States at all. But once they were present inside of the United States, the act did apply to them. Remember, the Alien Enemies Act allows the president to declare by proclamation that every alien enemy who is older than 14 can be apprehended.
detained, and even deported under the right conditions. And that's exactly what President Roosevelt did. He issued Presidential Proclamation 2525, issued on December 7th, 1941. the date of the attack on Pearl Harbor. And that proclamation said that... Under the Alien Enemies Act, Roosevelt declared that an invasion has been perpetrated upon the territory of the United States by the Empire of Japan.
and that all natives, citizens, and subjects of Japan over 14 were considered enemy aliens, and that these enemy aliens could be apprehended, detained, or deported. So this was a very, very broad power invoked by FDA. And the proclamation allowed FDR to target people of Japanese descent as enemy aliens based on nothing more than their ancestry. And so by 1944, when Art Shibayama's family found themselves behind a fence at the Crystal Springs prison camp,
They were just a few among thousands of foreign nationals who had been targeted this way. And remember, they were being held involuntarily in these camps. And it was the same Alien Enemies Act. that President Truman relied on on July 14th, 1945, to issue Proclamation 2655. And in that proclamation, Truman announced that all enemy aliens held by the United States
who are considered dangerous to the public peace and safety, could be deported. So remember, the Alien Enemies Act allows the president not just to round up people who are considered national security threats, but also to have them deported too. But the part that I find weird is the importing of them from Peru.
Like, I understand, like, or at least I like understand the logic of the, you know, the second part of this is like if somebody's a citizen or in the country and then, I don't know, you have this existential threat based on racism that for some reason that you're acting. in these sort of immoral ways. But why would you bring people from other countries into this country? That part doesn't make sense to me. And I can't imagine doing it without the complicity of the country of Peru as well.
Absolutely. The Latin American countries got together with the United States. Each country seemed to have a variety of... interests at stake about why they were willing to cooperate with the United States. And the United States just felt that they were going to secure the southern border. How were they going to do that? By taking the people they considered.
threats in different Latin American countries and then just imprisoning them, essentially. Inside of the United States. Right. So then what happened to the Peruvians? Well, they were in a terrible bind. First, they were dragged into the United States, right, against their will. And then President Truman said, get out. So what happened to most of the Japanese Peruvians was that they had had their passports confiscated before they set...
in the United States by the American government. So these people were, through no fault of their own, illegally present in the United States. And not only that, during World War II, several hundred of them, and this is one of the reasons why they were there. had been sent to Japan in exchange for American hostages during the war. And that included Art Shibayama's grandparents. He never saw them again.
And as for the remaining Peruvians, President Truman relied on the Alien Enemies Act to order them deported. But where could they go? Peru refused to take them back. And so between 1945 and 1946, more than a thousand Japanese Peruvians were deported to Japan. These were considered voluntary departures by the American government. But remember, these people had no choice. Peru didn't want them back. And the U.S. government considered them illegally in the country.
And it was also the case that many of these Japanese Peruvians were people who had lived in Peru for decades. They had no real ties to Japan at all. Eventually, Peru announced that it would allow some Japanese Peruvians who were Peruvian citizens or married to Peruvian citizens to return. But just 100 of these internees moved back to Peru in 1946.
And in 1947, long after the end of the war, there were still 300 Peruvian Japanese remaining in the United States. And they were essentially stateless. Eventually, these internees asked the federal government to suspend their deportation orders. But it wasn't until 1954 that Congress changed federal law to allow these non-citizens who had been unwillingly brought from Peru and other Latin American countries to become eligible for U.S. citizenship.
This ended years of uncertainty for the Japanese Peruvians who never wanted to come to the United States and then were unable to return home. Okay, so that's the prologue to this. So what does this have to do with... Trump using these various acts, potentially if he's reelected. That's right. I mean, so, Roman, as you can see, the Alien Enemies Act gives the president of the United States a very broad power to target people who are perceived as national security threats.
And in theory, that's a useful tool during wartime. But of course, in the wrong hands, because the tool is so broad, it can easily be abused by a bad faith president. And Trump has said several times during his reelection campaign that if he becomes president again, he will immediately rely on the Alien Enemies Act to begin mass deportations of non-citizens from countries like Mexico.
and Venezuela, people who are living in the United States. So for instance, in September of 2023, Trump said this, the Alien Enemies Act, to remove all known or suspected gang members, the drug dealers, the cartel members from the United States, ending the scourge of illegal alien gang violence once and for all. And more recently, Trump has said, we will have an Operation Aurora at the federal level to expedite the removal of these savage gangs, and I will invoke the Alien Enemies Act of 1798.
And Trump has said he would use the act to target every illegal migrant criminal network operating on American soil. And this, of course, is part of Trump's increasing reliance on nativism, racism and fear to gin up support for his reelection in the last weeks before Election Day. I mean, there's. Absolutely no declared war with anybody related to what Trump is talking about in particular. So how can he do this?
So that's a great question. Even though many people have claimed that the act is only for the president's wartime authority, The act doesn't limit itself to formal declarations of war by Congress. Instead, the Alien Enemies Act allows the president to target non-citizens either when there is a formally declared war. or when there's what the act calls an invasion or a predatory incursion. And in those cases, the president doesn't have to wait for Congress at all.
And in fact, FDR relied on the Alien Enemies Act to declare that non-citizens from Japan, Germany, and Italy were alien enemies right after the Pearl Harbor attack. Roosevelt didn't wait for Congress to formally declare So we're certainly not at war with Mexico. Being invaded or an invasion is a kind of a broad term, but this even seems like it's sort of outside the bounds of any sort of definition.
of invaded or invasion when it comes to Mexico. Right. I mean, I don't. Yeah. If you look at the law itself, it does seem to be a sticking point. So Trump keeps claiming falsely that there is a migrant crime wave in the United States and he keeps. using language like animals, thugs, sadistic monsters to describe the people involved in this alleged crime wave. So Trump's argument to his supporters is that he's going to begin these mass deportations of non-citizen migrants because they...
have brought with them an invasion of crime. That's the language he keeps using. So the problem for Trump's plan is that the Alien Enemies Act refers to an invasion or predatory incursion perpetrated by a foreign nation. So the Alien Enemies Act doesn't apply to decisions of individuals from other countries to do things like commit crimes. And you're right. Nobody.
believes that the government of Mexico or Guatemala or any other nation is leading an invasion, a formal invasion into the United States. But some supporters of Trump's plan have argued that, well, we don't have to rely on the literal reading of the act. And that maybe we can think of some countries as having been so taken over by criminal gangs. that you really can't separate the criminal gangs from the government itself.
So if that were to happen and Trump were to say, I don't need a literal reading of the act, I just need to kind of wave my hands near the act, then the Alien Enemies Act is written so broadly. It applies not just to non-citizens who are illegally within the United States, but also non-citizens who are lawfully within the United States, too.
And remember, there isn't any procedure for someone targeted by the act to appeal the president's decision to detain them or to order them deported. And that's because the president doesn't need to show that any particular person detained under the Alien Enemies Act.
actually poses a national security threat. It doesn't matter if you have evidence that you aren't a national security threat or that you are in fact loyal to the United States. It doesn't matter because that's not how the act works. Oh my God. I can't believe that the only thing holding it in check is the idea of what is a war or what is an invasion. Like from there on, like even that is such a slippery and elusive definition that could be used to bad ends that.
that the idea of it just gets worse from there, like there is like not even nominal protections from that point of that declaration is so chilling.
Yeah, that's right. And it's supposed to be a kind of, you know, flexible power in a time of war. But as you can see, it's kind of a legal sledgehammer. And it works against the idea that we have under modern conception of law, that people are supposed to be judged on the... things that they individually have done, not their ancestry or their group characteristics. Cat litter? Ah, no, no. Hmm, I just can't understand what... Hang on a moment.
Yep, we'll get something out to your tenant and get that looked at. With DirectLine's landlord emergency cover added to your landlord insurance, whether your tenants block the toilet or break a door lock, we'll get you from problem to solution as quickly as possible. DirectLine, we're on it. So what's the Supreme Court's take on this? Like, have they ever decided anything related to the Alien Enemies Act?
They have. When World War II ended in 1945, the Truman administration continued to rely on the Alien Enemies Act to intern and deport non-citizens until 1951. Kurt Ludecky was a German national who was considered an enemy alien and was ordered deported by the Truman administration on January 18th, 1946. Ludecky argued that he couldn't be deported under this act.
because Germany had already surrendered to the United States. That was his argument. The war was over. Truman could not rely on this power. But in 1948, the Supreme Court rejected Ledecky's argument. The Supreme Court said that whether the United States was still in a state of war was within the judgment of the political branches. That's Congress and the president, not the courts.
In the Ludecky case, the Supreme Court called the President of the United States a person entrusted with such vast powers in relation to the outside world and someone entrusted by Congress. almost throughout the whole life of the nation, with the disposition of alien enemies during a state of war.
In other words, not only did the Supreme Court reject Ludecky's specific claim that the war wasn't quite over, the Supreme Court also used the case to insert some broad, sweeping language to describe the president's powers under the Alien Enemies Act. You're mostly like open mouth. Well, I know. Yeah. It just gets worse and worse. I mean.
This expansive view of what are the powers of the president and what they're able to get away with reminds me of these recent immunity cases. And so I'm just kind of wondering, like, is there any type of court that would limit this type of action from Trump? Well, you know, first of all, if Trump were to be reelected and he relied on this act.
to try and start a mass deportation program, there's no doubt that there would be a flood of lawsuits. People trying to run to the courts to stop all of this. Now, you know... Maybe someone would bring a court challenge arguing that Trump is misinterpreting the idea of the invasion or predatory incursion that's mentioned in the Alien Enemies Act. And maybe a court might say, yes, that's absolutely right. He's gone too far.
But there is a potential hurdle, a legal doctrine called the political question doctrine. And what the political question doctrine means is that sometimes courts refuse to weigh in on even very, very important issues. Because in their view, it's just not the kind of subject a court should be involved in. In other words, that there are some matters that are for the political branches, Congress and the president to decide. And courts have relied on the political question.
doctrine to avoid getting involved in certain very sensitive topics, especially around war and foreign policy. They just don't want to get involved. And you know that Ludecky decision from 1944? The Supreme Court gives some hints that Well, there's a lot around the Alien Enemies Act that appears to be centered on political issues rather than legal determinations.
So what all of this means is that while it's possible that a court might say, no, a second Trump administration can't rely on the Alien Enemies Act to justify mass deportations. I think it's also possible that a court might say, well, as troubling as this is, this isn't something we can really resolve. This is really about a political issue, about the appropriate meaning of wartime authority. And we'll just kick it.
to the political branches yeah i mean i think there's a notion out there that the people who are agree with or sympathetic to trump that this rhetoric only applies to people who are in the country without documentation but what is super clear to me in this alien enemies act is that there is no notion that there's any difference of who Trump could target with this. They could be here legally. They could be undocumented. They could be from another country. That's the degree to which.
This allows him to target any type of person of descent from another country is just terrifying to me. Yeah, I mean, I think that's absolutely right. And what's more, when you think about the way the act is written. It's really giving the president this enormous authority. But let's say Trump is wrong. Let's say he's totally misinterpreting the act, which he probably is. You know, in the meantime, even if eventually a court says this is wrong, this is.
you know, not the way this act is supposed to be applied, you can easily see how so many people who've done nothing wrong can be caught up in an enforcement action in which their lives are ruined. Right. I mean, even if at the end of the day, well. well, this mass deportation program was a mistake and shouldn't have been started and stopped doing it.
In the meantime, there are always people who are targeted by these even unlawful acts by a president. And, you know, we don't talk about that even short term, but very damaging action. Yeah. And they could just take their passport away and then there's no they have nothing they can do. I mean, given all this and the broadness of it and the fact that. Foreign invasion is not like a huge part of American history in this way. Why is this act still around? Like has it ever been chipped away at?
Well, there are definitely proposals. There have been recent proposals, in fact, to try and either change the Alien Enemies Act or to just abolish it altogether. But it hasn't garnered a lot of traction. I think there is some reluctance, some fear. that do we really want to take away a power that seems to be necessary in a time of war?
What would we do if the president needed some broad authority in a time of war? And generally, you don't want to be the politician who strips the president of the president's authority in wartime. So there's definitely some nervousness around that. But as I said, one of the strange things about this. law, which has been on the book since 1798, is that it's absolutely contrary to the way we think about
modern law. You know, what do you do when you're caught up in such a system? And you say, I'm loyal to the United States. I'm not a spy. There's no evidence against me. The Alien Enemies Act doesn't really seem to care about that. It allows targeting. based on group characteristics, which is antithetical to the way we normally think about how the law treats people. Yeah, yeah. I mean, the Sedition Act, which came along with the Alien Act, that totally ran out of favor very quickly.
It's interesting that that one is the one that people felt was completely un-American, and this one is something that's passed through a couple of centuries. Yeah, no, absolutely right. I mean, it's not that Trump couldn't rely presumably on other...
legal authorities to target people that he wants to target. I mean, I don't think that that's the point, that this is the only act that's a problem. But this is, I think, one of the more obvious illustrations of what you have when you have the potential of a bad faith president. president using powers that are not supposed to be used in particular ways, but it's very likely that he's going to try. Yeah. Yeah. So going back to the original story, what happened to Art Shibuyama?
Well, in 1988, President Reagan signed a law called the Federal Civil Liberties Act Every surviving former Japanese internee from World War II received a $20,000 payment and an apology letter with the presidential seal. But the law addressed only Japanese Americans who were interned under Executive Order 9066. It did not include the Japanese Peruvians. And actually, it's stranger than that.
The children who were born to Japanese Latin Americans in these detainee camps were considered U.S. citizens because of birthright citizenship. And they were eligible for the full $20,000, not the Japanese Latin Americans. So in the 1990s, this group of Latin Americans sued the US government to receive compensation. And a settlement with the federal government resulted in each Latin American of Japanese ancestry receiving just a fourth of what the Japanese American internees received, $5,000.
And 17 attorneys rejected the amount as being so small that it was insulting. And in 2017, Art Shibayama and his brothers turned to the Inter-American Commission on Human Rights. part of the Organization of American States. The case dragged on for years, and Art did not live to see it resolved. He died on July 31, 2018, at the age of 88. San Jose, California. But in 2020, the Inter-American Commission on Human Rights agreed that the United States
violated the Shibayama's rights under the American Declaration on the Rights and Duties of Man. But the commission can only issue findings. It can't impose any penalties, and it has no enforcement authority.
and the trump administration it had refused to participate in the hearings at all elizabeth what are you doing to me this is awful stuff i'm glad people are aware of this I don't know if anyone listening to this has anything but a negative opinion of Trump, but the idea of this at his disposal and the history of this being so shameful across all kinds of administrations and courts, it's just chilling, the amount of power. represented here. It's just Kafka-esque.
type of power that you could put someone in a complete legal limbo who's from another country who gets imported here and then is subject to all of these laws and has no way out of it is just seems like a completely anti-humanist stance it's just Parabolical
Yeah, I mean, you know, to be fair, the organizers for the rights of Japanese Latin Americans have also petitioned the Biden administration for help and recognition, and they haven't been terribly responsive either. But I think the overall theme here is.
is that, yes, when you have these broad sweeping laws giving power to the president of the United States, can they be abused? Yes, they can be abused. And the story of the Japanese Peruvians during World War II is not only one that most people don't know about, it is... an exact example of how abuses happen and what happens to people whose lives are ruined. They were, as I said, essentially stateless. They had nowhere to go. They were taken from their homes. They lost their livelihood.
They lost their property. And while we lament what happened to the Japanese Americans, it seems very strange that, you know, we didn't acknowledge the suffering of the Japanese Latin Americans in the same way. For sure. Well, I hope everyone keeps this stuff in mind and knows that this type of power is bad when it's in Roosevelt's hands. It's bad when it's in Trump's hands. And it's bad power. It's like bad power to have.
Keep it in mind and make sure that if it's what we're relying on is the character of the people that we're electing to not use it in the worst possible way, then vote accordingly. That's right. Thank you, Elizabeth. Thanks, Roman.
This show is produced by Elizabeth Jo, Isabel Angel, and me, Roman Mars. It's mixed by Hazik Ben Ahmad Fareed. Our executive producer is Kathy Tu. You can find us online at learnconlaw.com. All the music and what Roman Mars can learn about con laws provided by Doomtree Records, the Midwest Hip Hop.
You can find out more about Doomtree Records get merch and learn about the new Shredders EP. They provide the music for our intro and outro music every week at Doomtree.net. We are part of the Stitcher and SiriusXM podcast family. Didn't flush baby wipes? No. Dental floss? No. Cat litter? Ah, no, no. Hmm, I just can't understand what... Hang on a moment. Yep, we'll get someone out to your tenant and get that looked at.
With DirectLine's landlord emergency cover added to your landlord insurance, whether your tenants block the toilet or break a door lock, we'll get you from problem to solution as quickly as possible. DirectLine. We're on it. Landlord insurance underwritten by UK Insurance Limited. Residential properties only. Cover up to £1,500 per callout.