Academic journal article Iowa Law Review

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

Academic journal article Iowa Law Review

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

Article excerpt

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 citizens.7 Part III begins this analysis by, first, assessing how the President can carry out the Scenario under current law in times of peace, and, secondly, finding that even more citizen detentions may be permissible in times of war. Finally, Part IV suggests several changes for both the courts and Congress in order to curb executive power.

II. Historical Development of Consolidated Executive Power

Section II.A first highlights the development of the Gulag system in the Soviet Union, focusing on the underlying rationales for Stalin's actions. Next, the Note addresses the expansion of executive power within the United States.8 Lastly, Section II.C poses a Scenario against which to test U.S. precedent by evaluating the boundaries and dangers of expansive executive power.

A. The Development of the USSR 's Gulag System

Over a century ago, the Bolshevik Revolution of 1917 put a protectionist ideology at the forefront of the Soviet Unions' development.9 The revolutionaries had first identified a division between the bourgeoisie10 and the proletariat.11 Seeking "uninterrupted growth of the well-being of the working people,"12 the early Soviet Union prioritized a strong criminal enforcement scheme. The first step in accomplishing the Communist Party goal of unifying the Soviet Union under a single worker-controlled party13 was to criminalize and punish "anti-Soviet elements" under these enforcement mechanisms.14 To advance this need, Lenin and the Bolsheviks established the Cheka, an institution founded to fight those counter-revolutionary activities.15 Stalin would ultimately use these criminal backdrops when he pursued collectivization16 and dekulakization.17 The Russian Socialist Federative Soviet Republic, one of the member states of the Soviet Union, first established a system of collectivizing land by establishing in its constitution a mandatory prohibition against holding land for profit. …

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