Executive order danger

Presidents are supposed to preserve, protect and defend the Constitution. Can an executive order violate that oath?
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The un-numbered Executive Order on defense resources redefines national defense with a broader scope than before. That makes it more dangerous than ever. Earlier versions of this order did not redefine national defense in any way. This one does, and in a way that no person would reasonably expect.

What the executive order says

The new Executive Order authorizes the President to take direct control of many kinds of resources “in time of peace or national emergency.” This includes energy, food, transportation, and medical care (typically giving first aid and treating fractures and other dire wounds in an emergency room). But the order goes beyond the kind of immediate emergency that one might see in an Irwin Allen movie. It discusses how to prepare for an emergency. Among other things, the executive order authorizes loan guarantees and public-private partnerships, and even letting the military install equipment on a contractor’s site.

This order is bad enough. Under it, the President could say the phrase national emergency and would own everything in the country. The last monarchs to wield such power were the Pharaohs of ancient Egypt. He could even say that the United States was in a state of war and quarter troops in people’s homes, thus violating the Third Amendment. Some say that, with this executive order, Barack Obama made Congress unnecessary.

At least two sources said over the weekend that this executive order said nothing new. They cited Executive Order 12919, that President Bill Clinton issued. Most of the languages of the two orders are parallel, except for changing “Federal Emergency Management Agency” to “Department of Homeland Security” wherever that phrase, or its initials, appeared. Both orders in fact cite the Defense Production Act of 1950. That alone suggests that Presidents have claimed this power for sixty-two years. None has even tried to exercise a fraction of the powers that they purport to grant. (This might be why no one has sued the government over this. Claiming a power is not the same as exerting it. Until a President does exert it, a court might rule that no one had standing.)

What national defense means

Presidents are supposed to preserve, protect and defend the Constitution. Can an executive order violate that oath?

The Presidential Seal

Ed Morrissey, one of the two men telling people to calm down about this executive order, called it mostly “boilerplate.” But Jay Sekulow of the American Center for Law and Justice noticed Paragraph 801(j):

“National defense” means programs for military and energy production or construction, military or critical infrastructure assistance to any foreign nation, homeland security, stockpiling, space, and any directly related activity.  Such term includes emergency preparedness activities conducted pursuant to title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5195 et seq., and critical infrastructure protection and restoration.

The Stafford Act (1988) deals, not with invading or even rebel armies, but with federal disaster relief efforts. It is the authority for the Federal Emergency Management Agency. That agency has never been part of the Department of Defense.

Furthermore, Paragraph 801(j) appears nowhere in Executive Order 12919. Furthermore, the new (un-numbered) Executive Order mentions national emergency four times and never defines it.

In fact, the United States Code has no rule that says what a national emergency is, and what it is not. The Congressional Research Service Publication 98-505 describes the emergency powers of the government. Specifically, the National Emergencies Act of 1976 (50 USC 34) says that the country is in a national emergency when the President says so and publishes that saying in the Federal Register. Specifically, 50 USC Section 1261 says:

(a) With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register.

(b) Any provisions of law conferring powers and authorities to be exercised during a national emergency shall be effective and remain in effect (1) only when the President (in accordance with subsection (a) of this section), specifically declares a national emergency, and (2) only in accordance with this chapter. No law enacted after September 14, 1976, shall supersede this subchapter unless it does so in specific terms, referring to this subchapter, and declaring that the new law supersedes the provisions of this subchapter.

The closest that the Constitution comes to defining a national emergency is when a foreign army invades the country, or a rebel army tries to take the country over:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

The Constitution also says that a State may not:

engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Furthermore, Congress, and not the President, has the power to declare war.

This Executive Order reads like an ancient Roman emergency decree for suspending civil rights and procedures and effectively declaring war against a rebel or rebels. Even that decree (Senatus consultum de re publica defendenda, or Senatus consultum ultimum) came from the Senate of Rome and not the consuls. More to the point, the Constitution of the United States does not support the notion of an Ultimate Congressional Joint Resolution in Defense of the Republic, that would, however temporarily, turn the President into a dictator. And it certainly does not allow the President, without the advice or consent of the Congress, to assume such power.

The present danger

Jay Sekulow told Sean Hannity, in the video linked above, that the man now holding office as President would be more likely to dictate under this Executive Order than would any of his predecessors. He cited this article by Ilya Shapiro of the CATO Institute (named for Cato the Younger, the most vociferous opponent of Julius Caesar). This article lists ten ways that Obama has violated the Constitution. Even that list does hot exhaust all the unconstitutional things that Obama has done. (Nor does it list his standing for the office of President under false pretenses of natural-born citizenship, though his father was a British colonial subject and now his birth certificate is in doubt.)

The danger of the new Executive Order is twofold.

  1. It redefines national defense to include responses to bad weather (and exploration of, or any activity in, outer space).
  2. The man signing it has poured contempt on the Constitution in many other ways before this.

But in fact this danger has grown for nearly a century. Ironically, Publication 98-505 clearly describes a sorry history of abuse of Presidential power beginning with the Presidency of Woodrow Wilson.

Apologists for expanded Presidential power (though not necessarily for Barack Obama’s exercise of it) will say that the modern era presents threats that the procedures of Congress cannot answer quickly enough. CNAV disputes that notion. Congress could better serve the country by ensuring that its members use any means of instantaneous telecommunications and teleconferencing to carry on its business even if (God forbid) a rebel, a saboteur, or a foreign power destroys the Capitol or stops Congress from getting to it. Ironically, the Defense Advanced Research Projects Agency (DARPA) gave us the means to solve the problem: the Internet. The same protocols that let critical military information systems stay in contact, even after a saboteur or a bomber “cuts the cables,” already let people meet in cyberspace and chat as if they were in the same physical room. Peer-to-peer programs already exist, and anyone can easily learn how to use them. So if the President needs Congress to declare war, Congress could meet on Skype.com or a similar service to so declare, and could do so within seconds.

Those same apologists will ask what happens if an incoming missile destroys the capital while all the officers of the government are inside it. The best place to answer that question is in Congress, which can propose amendments to the Constitution and send them to the States to ratify. Those amendments can specify who takes over under what circumstance, what the military (or, more properly, the militia) may do at once in the face of a direct attack, how to assemble a “rump Congress” if need be to declare war against an invader or rebel, etc. They can also say what a President may or may not promise to a foreign power when making a treaty. (One reason for the present problem is that the Senate has been too willing to “concur with,” or ratify, treaties that, some say, contain automatic triggers of a state of war without even asking Congress to declare it. The North Atlantic Treaty and the treaties that set up the United Nations are the prize examples.)

If anything good can come out of this Executive Order, it would be a thorough review of the powers that successive Congresses, and especially the Senate, have granted to Presidents before today. Congress should never have granted at least half of these powers, and the Senate should never have ratified a treaty that automatically puts America in a state of war without asking Congress to declare it specifically and in each instance. Nor should Congress have granted anyone any power to manage certain “emergencies” that are for the people, exercising their reserved powers (see Tenth Amendment), to manage.

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