Donnelly: Clarifying the boundaries

During a recent coronavirus briefing, Vice President Pence observed that executive powers in an emergency are “plenary,” meaning “absolute and limitless.” But interpretations vary. Abraham Lincoln and Franklin Roosevelt, presidents separated by 80 years but each facing war and possible national destruction, made plenary use of power to restrict citizens’ freedom as they defended the nation.

Lincoln, addressing rebellion along railroad lines leading to the capital, directed the military to suspend habeas corpus, a fundamental right dating from the Magna Carta requiring the government to show cause for arrest or detention. Supreme Court Chief Justice Roger B. Taney repeatedly challenged the suspension and never reconciled with Lincoln, but Congress authorized Lincoln’s actions.

Pragmatic Lincoln replied to Taney’s critique, “Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated?” The Union survived.

Franklin Roosevelt, after Pearl Harbor, directed the military to detain any citizen “if needed” in a 60-mile-wide Pacific coastal area. In a move that elicited payment of reparations in 1988, such detainees — 120,000 innocent Japanese Americans, Italians and Germans — were herded into camps. The Supreme Court in several cases ruled that the government had the power to arrest and intern in cases of “pressing public necessity … because we are at war with the Japanese Empire and the properly constituted military authorities feared an invasion …,” in the words of Justice Hugo Black in Korematsu v. United States.

For both Lincoln and Roosevelt, in these admittedly extreme examples, the welfare of the many and of the union outweighed the rights of the individual. Fred Korematsu, a civil rights activist who was arrested for defying internment and whose case was heard in the Supreme Court in 1944, received the Presidential Medal of Honor in 1998. He is justifiably a hero for pushing back on government’s emergency powers.

In 2020, government’s commitment to saving lives is again balanced against constitutional rights, and the results in some cases are arbitrary and excessive. Gov. Jay Inslee’s orders recently allowed boats on the Columbia River, but no fishing lines to be used. (Fishing will be allowed soon.)  More substantively, a March 23 order effectively bans religious gatherings.

Protests are justified, though protester methods are at times flawed, such as on April 20 in Olympia where some defied the organizers’ request that they wear masks.

Joshua Freed, candidate for governor, has now filed a lawsuit over Inslee’s effective restrictions on exercise of religion. Time will tell whether his arguments prevail in the courts. 

And now U.S. Attorney General William Barr has instructed federal prosecutors to “be on the lookout” for infringements on people’s constitutional rights. “The Constitution is not suspended in times of crisis.” 

Welcome news.

Thank you, protesters. America needs you. But please wear masks.