This Executive Order (EO) (as yet unnumbered) dated last Friday provides for the continuity of Government in the case of a National Emergency and puts in place the planning for “preparedness.” The words Martial Law do not appear in the title of the EO, but a quick read makes it clear that confiscation of property can be ordered in certain circumstance. The question is, why do we need this order? Below you will see that we already have similar direction in place and have had for many years. What is different about this one? It would take many hours for me to figure it out in detail, so I’m hoping someone else who follows Executive Orders or national defense directives, will write about why this one is needed.
Here’s my inexpert opinion: Obama clarifies in March 2012 EO, that in the case of an National Emergency the government can take everything you have: your food and water and weapons, your manufacturing, construction businesses and farms, and their equipment and supplies , the country’s energy, our civil transportation. They can abscond with your fertilizers. The Government can expand or modify your privately owned business, force Government-owned equipment into your facility, and hijack your labor field. UPDATE: AND they can do this at anytime of an emergency or in times of peace (continue below the graphic).
Sec. 102. Policy. The United States must have an industrial and technological base capable of meeting national defense requirements and capable of contributing to the technological superiority of its national defense equipment in peacetime and in times of national emergency. The domestic industrial and technological base is the foundation for national defense preparedness. The authorities provided in the Act shall be used to strengthen this base and to ensure it is capable of responding to the national defense needs of the United States.
The question: if we are not “capable” in times of peace of “contributing” when there is an emergency, what are the Government’s limits, based on their authority under this document (and yes, similar docs have been signed by many other presidents), but it is something we should ponder.
UPDATE: As I continue to research this EO, I read and hear a lot of hysteria on the blogosphere, and I am not entirely dismissive of that hysteria, but the truth is, without deep research into every Executive Order, Presidential Directive and Proclamation, we haven’t a clue. The Purpose and Policy leads me to believe the EO authorizes the analyzation (assessment) of our preparedness. The authority to “Implement,” before an emergency, is not as clear. This provision is particularly unclear:
be prepared, in the event of a potential threat to the security of the United States, to take actions necessary to ensure the availability of adequate resources and production capability, including services and critical technology, for national defense requirements;to take actions necessary to ensure the availability of adequate resources and production capability, including services and critical technology, for national defense requirements;
If found that we do not have the capabilities, services and critical technology, what action can the Government take to provide it? [end UPDATE]
The various Cabinet Secretaries will give their “findings” of need, which may wander into another Department’s purview, but if two Secretaries disagree, the president will make the final decision. The Order guarantees necessary “loans” from private institutions.
Government seizing water is always a concern to me. This order clarifies:
(n) “Water resources” means all usable water, from all sources, within the jurisdiction of the United States, that can be managed, controlled, and allocated to meet emergency requirements, except “water resources” does not include usable water that qualifies as “food resources.”
Canada Free Press notes Government agents have been “visiting farms with GPS devices, so they know exactly where to go….”
The March 2012 order says:
1) Nothing in the Order “affects the authorities assigned under Executive Order 12472 of April 3, 1984.” Order 12472 was signed by Reagan and is titled “Assignment of national security and emergency preparedness telecommunications functions and has been amended several times.
2) The Order also states it does nothing to affect Executive Order 11858 of May 7, 1975 – EXCEPT in Section 802 of this Order. Executive Order 11858 is titled Foreign Investment in the United States.
3) My take on Section 802, is that powers delegated to the Secretary of Treasury CAN BE re-delegated, and allows subpoena power, and denies “fixing compensation,” whatever “fixing compensation” means in this context.
George W. Bush issued at least two Martial Law Executive Orders and it is important to note that there are differing types of Martial Law, when, how and from whom martial law can be declared.
At least one of Bush’s asked Department heads for contingency plans in the event of a “decapitating” attack, meaning, according to the Washington Post, a nuclear bomb attack in Washington, D.C. without any prior warning. The crux of the one Bush Order is planning across the U.S. in the event of government in D.C. being destroyed.
After the 2001 attacks, Bush assigned about 100 senior civilian managers to rotate secretly to locations outside of Washington for weeks or months at a time to ensure the nation’s survival, a shadow government that evolved based on long-standing “continuity of operations plans.”
Since then, other agencies including the Pentagon, the Office of the Director of National Intelligence and the CIA have taken steps to relocate facilities or key functions outside of Washington for their own reasons, citing factors such as economics or the importance of avoiding Beltway “group-think.”
May 2007, in Bush’s The National Security and Homeland Security Presidential Directive:
…also places the Secretary of Homeland Security in charge of domestic “security”, was signed earlier this month without the approval or oversight of Congress and seemingly supercedes the National Emergency Act which allows the president to declare a national emergency but also requires that Congress have the authority to “modify, rescind, or render dormant” such emergency authority if it believes the president has acted inappropriately. Source: InfoWars
In January 2010 Obama issued another Executive Order to establish The Council of Governors specifically to convene in the event of a national disaster.
Under both Republican and Democrat Congresses, Executive Orders have been derided, examined and fought. Executive Orders find their legality in the “implied powers doctrine,” but should in theory, be based on constitutional responsibilities or on statute. A recent example is Secretary of Defense Leon Panetta telling the U.S. Senate that the President has/had the authority to send troops into war zones without Congressional authority, specifically referring to Libya and Syria, based on, according to Panetta, the responsibility to protect the Nation. Generally that protect points to vital interests of livelihood, quality of life and physical protection of American soil. Neither Libya or Syria affects a national interest of the U.S. It now remains to be seen what Congress does about Panetta and his in-you-face power grab on behalf of the Department of Defense and Barack Obama.
The following comes from a 1999 U.S. House of Representatives Committee on Rules testimony on Executive Lawmaking (the numbering and paragraphing are mine for easier reading):
The options available to Congress in the face of an executive order it opposes are constrained by the nature of a system that requires legislation emerging from the Congress to be signed or allowed to become law by the President.
1) The Congress may seek to nullify, repeal, revoke, terminate or de-fund an executive order, but each such action requires the eventual concurrence of the President (most likely the same President that issued the order in the first place).
2) The Congress may also seek to repeal the underlying statutory authority upon which a particular executive order was based. If the underlying statute is repealed, any ensuing executive order based upon that law is no longer valid.
3) Another tool available to the Congress is to seek to implement a sunset or termination date for statutory authority upon which an executive order is based. In this way, when the sunset date is reached, it is up to Congress to determine whether to renew the provision or let it die.
4) A major tool in the arsenal of the Congress with regard to executive orders lies in the power of the purse. Congress may withhold funds for the implementation of an executive order, thereby directly challenging the President’s ability to put in place a particular policy…
5) Remedy also exists in the judicial branch, in instances where the legitimacy of an executive order is challenged. There have been, however, only two occasions – once in 1952 and once in 1996 – when executive orders were struck down by the courts.
When President Truman seized steel mills to end a labor dispute, the matter ended up at the Supreme Court:
The Court found that an executive order must be based either on an act of Congress or directly on the Constitution itself. In an important concurring opinion, Justice Jackson established a framework for assessment of executive orders, which includes three “tests” to determine the legitimacy of such an order. That opinion reads, in part:
“When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. . .
“When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. . .
“When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the entire matter. . .”
President Clinton’s EO 12954, disallowing contracting with any company replacing striking Union members, was struck by SCOTUS.
Clinton’s EO 13083 tried to revise Reagan’s EO on “federalism” and the powers of state and local authorities. He eventually withdrew the EO after Governors, state legislators and city officials mounted opposition.
I find one House Resolution to “Restore Separation of Powers” legislation, introduced in 1999 by Congressman Ron Paul. It went exactly nowhere.
In my opinion, to clean up illegal and abusive Executive Orders, we must first legislate that the Executive Office and the DOJ provide the constitutional or statute power behind the Executive Order.