Issue in Focus
May 26 2017
Alexander Hamilton was no opponent of a strong executive. During the constitutional convention, he actually favored crowning an American king, a misguided proposal he dubbed the “English model.” Yet Hamilton understood that even the monarchical executive he preferred needed limits to his power. In Federalist 84, he listed some of the abuses of an out-of-control executive, singling out “arbitrary imprisonments.” He called them the “favorite and most formidable instruments” of tyrants.
The Constitution includes safeguards against this form of tyranny, including the right of habeas corpus and the guarantee that American citizens will not be “deprived of life, liberty, or property” by the government “without due process of law.”
Our commitment to these rights is tested in times of crisis. We have not always passed these tests. During the Second World War, President Franklin Roosevelt unilaterally authorized the internment of over 100,000 Japanese-Americans for fear they would spy against the United States. Most of them were native-born citizens. Many had never been to Japan before in their lives.
The internment of Japanese-Americans is a dark chapter in the nation’s history—the Supreme Court decision that enabled it, Korematsu v. United States, belongs to the “anti-canon” of worst Supreme Court decisions of all time, along with Plessy v. Ferguson and Dred Scott v. Sandford. The episode is a warning of how dangerous it is when we permit the executive branch to slip its constitutional restraints.
With this warning in mind, in 1971 Congress curbed the executive branch’s power to indefinitely detain U.S. citizens by passing the Non-Detention Act, which states that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”
On Wednesday, I introduced the Due Process Guarantee Act, along with Sens. Dianne Feinstein (D-CA), Ted Cruz (R-TX), and several other colleagues, to further protect Americans from indefinite detention by the government.
Since the 9/11 attacks and the emergence of terrorist groups like ISIS, there has been renewed pressure to diminish our constitutional protections while growing government. Lawmakers from both parties have rushed to grant the executive branch the power to detain Americans without charge, without trial, and without meeting the evidentiary standard required for every other crime—potentially for life.
The Due Process Guarantee Act would raise the bar the government has to clear in order to indefinitely detain American citizens and lawful permanent residents apprehended on U.S. soil. It would forbid the government from justifying such detentions using general authorizations of military force, such as the 2001 Authorization for Use of Military Force against the terrorists responsible for the 9/11 attacks. Instead, the government would be required to obtain explicit, written approval from Congress.
Our bill is based on a simple premise: If the president wants to go outside the ordinary law enforcement system to apprehend an American on U.S. soil without charge or trial, he needs extraordinary permission from Congress. And if elected representatives want to give the president this awesome power over their constituents, they need to be honest about it by granting an explicit authorization. They shouldn’t hide behind vague laws.
The bill is based also on my faith in our law enforcement officers and judges, who have successfully apprehended and prosecuted hundreds of homegrown terrorists. Their example proves that our security is not dependent on a supercharged president and weakened Constitution. We can secure the homeland without using the “formidable instruments” of tyrants.