A Presidential Agenda for Liberty and National Security

Foreword

American democracy urgently needs renewal. In the coming years, one of the great issues facing the country will be the presidency itself. A half century ago, in the wake of Watergate and Vietnam, laws and rules aimed to check the “Imperial Presidency.” Over the decades those limits eroded and then were finally cast off. The past three years have seen a refusal to honor oversight and a politicization of the executive branch. The president insists the Constitution gives him “the right to do whatever I want.” The abuse of power in Lafayette Park this summer was just the most visible, and most violent, example of shattered norms. And from the administration’s onset, abusive and often unconstitutional power has been wielded against religious minorities and immigrants in a way that has no precedent in the past half century.

In this time of reckoning, a great task must be to reset the system of checks and balances and once again restore the presidency to its rightful place. There must be, as well, an immediate reset of many policies that are driven by racial or religious animus rather than the national interest.

This volume includes recommendations for executive actions and legislation from the Brennan Center for Justice at NYU School of Law. They focus on ending religious and racial profiling and immigration bans driven by the same motives, a new law enforcement focus on the real threat of white supremacist violence, and renewed protection for civil liberties and transparency. It reflects, as well, urgently needed steps to curb abuse of executive powers. A previous Brennan Center volume proposed executive actions to enhance ethics and fight corruption. A forthcoming report will outline legislation and executive actions to end mass incarceration and advance racial justice.

In all of this, Congress must do its part to play its constitutional role. Courts, too, must step up.

But the president can lead, displaying what Alexander Hamilton called “energy in the executive,” this time not to grossly expand presidential power but to restore the office to its rightful role.

We the people have a duty as well: to insist that our leaders commit to the Constitution and make renewal of our democracy not just one issue among many but also a central task for our nation.

Michael Waldman
President
Brennan Center for Justice

Introduction

Our freedoms — freedom to speak, travel, and worship; freedom from intrusive government surveillance; and freedom from invidious discrimination — are the guardians of our democracy. These freedoms are under threat as rarely before in our history. Specious invocations of national security, the failure of Congress to fulfill its role as a coequal branch of government, and a resurgence of overt racism both inside and outside of government are enabling an alarming assault on civil liberties and constitutional limits on executive power. As always, it is minority communities — African Americans, Muslim Americans, immigrants, and others — who are bearing the brunt.

This assault has many fronts. Blanket immigration bans have targeted entire countries based on religion and race. A national emergency declaration, whose sole purpose is the construction of a wall along the southern border that Congress refused to fund, has been in effect for over a year. Military forces and heavily armed federal agents have assembled in the streets of our cities to intimidate those who peacefully protest racial injustice, all while the Department of Justice is systematically deprioritizing the investigation and prosecution of white supremacist violence. Each of these actions targets people of color, painting them as less American than the waning white majority.

These unprecedented measures add to — and build on — several longstanding government practices that undermine civil liberties and burden marginalized communities. Changes in the law and technology have given the government broad, warrantless access to Americans’ communications and other sensitive information. Gaps in racial profiling rules allow border agents, local law enforcement, and other government actors to target people based on their race, nationality, and religion. Excessive government secrecy prevents effective congressional oversight and stymies accountability. Weak legal protections for whistleblowers translate to pink slips and criminal referrals for government employees who expose abuses within the executive branch.

To fulfill this nation’s promise of equality and freedom for all, we must change course. Our country is more secure, not less, when our government welcomes people of all faiths and races; decides whom to investigate and prosecute based on evidence of criminal conduct rather than on a person’s race or beliefs; and operates with transparency, oversight, and accountability. To that end, the president should undertake the following policy changes:

End immigration bans.

The president should

• immediately repeal existing blanket immigration bans, including those against travelers from several majority-Muslim and African countries;
• support legislation that would establish criteria for future decisions to deny entry; and
• put an end to “extreme vetting,” which facilitates discrimination in the issuance of visas and serves as a backdoor ban.

End racial and religious profiling.

The president should

• direct agencies to close the loopholes in their racial profiling guidance that enable profiling based on race, religion, nationality, and other protected characteristics in far too many cases; and
• support the long overdue passage of the End Racial and Religious Profiling Act, which would codify a prohibition on racial and religious profiling.

Mount an effective and targeted response to white supremacist violence.

The president should

• commit his administration to collecting and disclosing the data necessary to determine whether the Department of Justice is adequately responding to white supremacist and far-right violence;
• direct the attorney general to issue a comprehensive strategy to address this growing threat; and
• reject approaches — such as new domestic counterterrorism laws and Targeted Violence and Terrorism Prevention programs — that hold little promise but carry significant risk for the marginalized communities they inevitably target.

Build guardrails for emergency powers.

The president should

• issue a presidential memorandum establishing criteria for declaring a national emergency and support legislation amending the National Emergencies Act to bolster Congress’s role as a check against abuse;
• disclose presidential emergency action documents to relevant congressional committees; and
• issue an executive order placing a heavy thumb on the scales against using military forces for domestic law enforcement, even in those situations where the Posse Comitatus Act does not apply.

End warrantless spying on Americans.

The president should

• direct agencies to overhaul their procedures under the Foreign Intelligence Surveillance Act (FISA) to better safeguard Americans’ privacy, and support FISA reform legislation;
• direct agencies to develop policies requiring warrants to obtain certain highly sensitive information, in accordance with Carpenter v. United States; and
• ensure that the federal government only supports the development of digital contract-tracing tools if they are effective and accompanied by strong privacy safeguards.

Recommit to national security transparency.

The president should

• issue an executive order targeted at reducing overclassification and streamlining declassification;
• issue a presidential memorandum limiting secret law; and
• strengthen protections for intelligence community whistleblowers by revising Presidential Policy Directive 19, directing the attorney general to revise regulations, and supporting reform legislation.

These changes alone will not ensure the health of our democracy. But they will go a long way toward securing the freedoms for all Americans, regardless of race or creed, that make a robust democracy possible.