Solzhenitsyn's Submissive Sheep of Today: The United States' Susceptibility to Dictatorial Takeover and Presidential Overreach

• Author: Derek LaBrie
• Position: J.D. Candidate, The University of Iowa College of Law, 2019; B.S., Commercial Aviation, B.A., Political Science (Honors), University of North Dakota, 2016
• Pages: 2223-2267

2223

Solzhenitsyn’s Submissive Sheep of Today:

The United States’ Susceptibility to

Dictatorial Takeover and

Presidential Overreach

Derek LaBrie*

ABSTRACT: The expansion of executive power in the United States began in

the aftermath of the nation’s involvement in World War II. Slightly earlier,

the Soviet Union’s expansion of executive power began in 1917 with the

Bolshevik Revolution. Aside from chronology, there were few differences

between the expansion of executive power fostered by both global superpowers

early in their nationhood. For example, both countries pride themselves in

strong executive power, including primarily the ability to detain perceived

enemies, convicts, and war criminals. The United States judiciary has

repeatedly given enormous deference to the President on these issues, allowing

the President to detain individuals nearly absolutely. Furthermore, the

ostensible constraints the Constitution places on presidential power have been

weakened by judicial precedent, such that the President can easily evade those

constraints. Lastly, without a firm definition of what constitutes war, the

President has acquired the authority to exercise wartime prerogatives and

commit troops without congressional authorization. This Note posits a

hypothetical scenario, mirroring the Stalin regime’s Gulags, against which to

test current United States law’s weak constraints. The few limitations that

have been placed on the Executive Branch have been inadequate and are in

desperate need of repair. In the face of little congressional opposition,

Presidents have expanded executive power. One such power is virtually

unlimited discretionary detention power. In order to reign in this expansive

power, the United States should pass and ratify a new constitutional

amendment aimed at limiting executive power. In this way, the United States

can do what the Soviet Union failed to do—prevent massive political

incarcerations in Gulag concentration camps.

*

J.D. Candidate, The University of Iowa College of Law, 2019; B.S., Commercial Aviation,

B.A., Political Science (Honors), University of North Dakota, 2016.

2224 IOWA LAW REVIEW [Vol. 104:2223

I.INTRODUCTION ........................................................................... 2225

II.HISTORICAL DEVELOPMENT OF CONSOLIDATED

EXECUTIVE POWER ..................................................................... 2226

A.THE DEVELOPMENT OF THE USSR’S GULAG SYSTEM ............... 2226

B.THE CONSOLIDATION OF U.S. EXECUTIVE POWER ................... 2232

1.Detention Through Criminalized Activity ................. 2232

i.Classification and Detention for un-American

Activities ................................................................. 2233

ii.Classification and Detention for Demographic

Characteristics ......................................................... 2236

iii.Classification and Detention for Ideology .................. 2238

2.How the Expanding Definition of War Creates

Too Much Power ......................................................... 2238

i.World War II Detentions: Hirabayashi and

Korematsu ............................................................. 2239

ii.The Application of World War II Detention

Precedent ................................................................. 2244

iii.The Future of Executive Wartime Powers .................. 2245

C.THE SCENARIO ...................................................................... 2249

III.THE LACK OF EXECUTIVE CONSTRAINTS .................................... 2250

A.THE CURRENT FORCES SUGGESTING THE SCENARIO IS

CONSTITUTIONAL .................................................................. 2250

1.Detention Based on un-American Activity ................ 2252

2.Detention Based on Race ........................................... 2253

3.Detention Based on Ideology ..................................... 2253

B.THE PRESIDENT’S DECLARATION OF WAR STRENGTHENS

THE LIKELIHOOD OF UPHOLDING THE SCENARIO. ................... 2257

IV.STEPS TO LIMIT EXECUTIVE OVERREACH ................................... 2259

A.REPEAL DANGEROUS PRECEDENTIAL DECISIONS ...................... 2259

B.LEGISLATIVE ENACTMENTS .................................................... 2260

C.CONSTITUTIONAL AMENDMENT IS THE SUREST WAY TO

PREVENT WRONGFUL CITIZEN DETENTION ............................. 2262

V.CONCLUSION .............................................................................. 2266

2019] DICTATORIAL TAKEOVER AND PRESIDENTIAL OVERREACH 2225

I. INTRODUCTION

“We do not have courts so that presidents can be checked in

situations of national emergency. . . . There’s nobody that can check

that. That’s the President’s responsibility.”1

— Judge Richard Posner, Seventh Circuit Court of Appeals

Despite the desire to view the Constitution as a perfect safety net against

injustice, the United States is neither invulnerable nor immune to dictatorial

takeover; instead, the United States is as susceptible to a power-hungry leader

as many prior nations throughout history. To illustrate, this Note will

consistently refer to the Stalin regime in the Soviet Union, specifically

examining the Gulag system for detaining citizens. Although many

circumstances in the development of that regime differ from the executive

power jurisprudence in the United States, there are stunning similarities in

the way the Executive is capable of exercising enormous power. The

Constitution ostensibly grants Congress the exclusive power to declare war2

and prohibits forced labor institutions.3 These constitutional safety nets,

however, are far weaker than they appear. This Note seeks to bring these holes

to light by positing a hypothetical scenario against which to test the limited

safeguards provided by the Constitution and Congress. The identified

shortcomings of the Constitution should be amended despite the public’s

feeling of invulnerability. The United States is vulnerable and needs to

respond to the dangerous executive power precedent first seen in Hirabayashi

and Korematsu after the attack on Pearl Harbor, and since applied, despite the

2018 abrogation of Korematsu.4

This Note first analyzes the evolution of executive power jurisprudence

in both the Gulag-era Soviet Union and the United States.5 These expansive

powers undercut the separation of powers doctrine6 and highlight the danger

of congressional inaction related to checking executive power. To

demonstrate this danger, this Note offers a hypothetical scenario (“Scenario”)

mirrored after Stalin’s development of the Soviet Gulags, against which to

assess any current protections against the executive detention of United States

1. Radiolab Pre sents: More Perfect–American Pendulum I, WNYC STUDIOS, at 36:51 (Oct. 1,

2017), http://www.radiolab.org/story/radiolab-presents-more-perfect-american-pendulum-i.

2. See infra note 172 and accompanying text (highlighting that Article I also grants

Congress significant wartime authority).

3. See infra notes 194–96 and accompanying text.

4. See infra text accompanying notes 122–41.

5. See infra Part II.

6. For a definition and explanation of the separation of powers doctrine, see Philip B.

Kurland, The Rise and Fall of the “Doctrine” of Separation of Powers, 85 MICH. L. REV. 592, 593 (1986)

(“Separation of powers certainly encompasses the notion that there are fundamental differences

in governmental functions—frequently but not universally denoted as legislative, executive, and

judicial—which must be maintained as separate and distinct, each sovereign in its own area, none

to operate in the realm assigned to another.”).