When Congress Becomes The Oppressor: From The McCarran Act To The "China Initiative"

On this day 74 years ago, the Senate followed the House's action the previous day and overrode President Truman's veto of the Internal Security Act of 1950 (also known as the McCarran Act), the most politically regressive and repressive law enacted since the Alien and Sedition Acts. It would take more than 20 years for federal courts and a subsequent Congress to repeal it. Earlier this month, the House passed a bill in the spirit of the McCarran Act that would revive the odious and discredited Trump-era "China Initiative."

I spend a lot of time talking about Executive branch overreach that begets political repression, and for good reasons. Most of the coercive power in our federal system, including the capacity to use lethal force domestically, resides within that branch. But another branch of the federal government is perfectly capable of making life a living hell for the politically disfavored: Congress.

Almost three-quarters of a century ago and on a bipartisan basis, the Congress passed the Internal Security Act, also commonly referred to as the McCarran Act for its sponsor, Democratic Senator Pat McCarran of Nevada. The law required alleged "Communist action organizations" to register as such with the Attorney General and report annually on their activities. It also created the Subversive Activities Control Board (SACB) to hear cases brought by the Attorney General seeking to have a given organization designated as a "Communist action organization" and require its registration.

The McCarran Act also created an "Emergency Detention Act," which in the event of an unspecified "national emergency" allowed the FBI to round up and detain anyone "as to whom there is reasonable ground to believe that such person probably will engage in, or probably will conspire with others to engage in, acts of espionage or of sabotage."

Notice the standard for detention: "reasonable ground" not "probable cause," the latter being the Constitution's actual legal standard for seizures and searches per the Fourth Amendment.

If you're thinking all of this must have led to "Star Chamber"-like proceedings against the accused, you'd be correct.

Throughout most of the 1950s and into the early 1960s, federal courts--including the Supreme Court--upheld the constitutionality of the McCarran Act. But as the McCarthy era faded and changes in the composition and judicial philosophy of the Supreme Court occurred, the McCarran Act came under renewed and successful legal attack by its victims and opponents. By the mid-1960s, the law's registration requirement had been ruled unconstitutional, and Congress officially killed SACB during Nixon's presidency.

Given the professional and personal destruction wrought on tens of thousands of Americans by the instrumentalities created through the McCarran Act, one would think that those in Congress today would want to avoid going back down that dark, unconstitutional path.

No such luck.

Let me tell you about the deceptively named “Protect America’s Innovation and Economic Security from CCP Act of 2024” (H.R. 1398), which passed the House with 23 Democrats voting with all Republicans in support of the bill on, of all days, the 23rd anniversary of the 9/11 attacks.

Or better still, I'll let Congressional Asian Pacific American Caucus (CAPAC) Chair Rep. Judy Chu (D-CA) tell you about it:

The devastating H.R. 1398 would revive the Trump-era China Initiative, a program that purported to prosecute and curb cases of economic espionage but instead targeted innocent Asian American scientists for investigation and arrest because of their Chinese descent. This McCarthy-esque witch hunt, carried out by our own government, irreversibly ruined so many lives and careers while casting a chilling effect on our academic community that continues to damage our country’s global competitive edge and ability to stay on the cutting edge of scientific advancements.

Ripped out of Trump’s Project 2025, this bill is an egregious outcome of xenophobic and fear-mongering rhetoric from Republicans who so prioritize the appearance of being ‘tough on China’ that they fail—or willfully ignore—to see or care about the havoc the China Initiative has wreaked on Asian American communities. So let me be clear: while we all want to stop American secrets from being stolen, investigations should be based on evidence of criminal activity, not race, ethnicity, or national origin.

Creating a dedicated anti-Chinese bureaucracy inside of the Justice Department's National Security Division, inspired by Trump's despicable and disastrous "China Initiative," would be racist and ineffectual from a national security standpoint. But that clearly doesn't matter to the House bill's sponsor, Rep. Lance Gooden (R-TX), or his Senate counterpart, Senator Rick Scott (R-FL), who sponsored the identical Senate version of Gooden's House bill.

While it's highly unlikely the Senate will take up either the House bill or Scott's version the balance of this year, that won't matter if Trump wins the White House (still possible), Republicans retake the Senate (very likely), and the GOP maintains control of the House (possible but uncertain at this point) going into 2025. If that happens, we may witness a new, dark era of racially motivated surveillance, "lawfare," and political repression targeting Chinese Americans. All the more reason to get to the polls this November to prevent it from ever coming to pass.

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