Document Type
Article
Publication Date
2025
Publication
Fordham Law Review
Volume
93
Abbreviation
Fordham L. Rev.
First Page
1197
Abstract
This essay examines ethical dilemmas facing government agency lawyers through two episodes from Herbert Wechsler’s wartime service as head of the DOJ War Division: overseeing the Supreme Court brief in Korematsu v. United States and administering the Renunciation Act of 1944 amid turmoil at the Tule Lake Segregation Center. In the Korematsu matter, Wechsler managed a brief that skirted the Army’s problematic “Final Report” claims (including shore-to-ship signaling), privileging institutional role fidelity over disclosure, and helping sustain a framework that justified mass removal of Japanese Americans. In the renunciation program, he chose to accept any “voluntary” citizenship renunciation regardless of motive, a stance that led to thousands of reversals and years of litigation, revealing how bureaucratic choices under pressure can amplify harm when lawyers underplay their discretionary power.
Across both episodes, the essay interrogates Wechsler’s commitment to a “separation of function in society,” arguing that overreliance on role constraints can narrow moral responsibility and obscure the Spielraum—oppositional maneuvering room—available to government lawyers within troubling systems. By contrasting Wechsler’s decisions with later judicial repudiation and ethical scholarship, the piece urges lawyers to recognize and exercise professional discretion: to press for candor, resist equivocation, and design implementation paths that account for coercion, duress, and the lived realities of those subject to state power.