My friend, Jay Gaskill, is a practicing attorney, a former Public Defender, a registered Democrat, and one among a handful of the smartest men I know.
He brings all that to this instructive analysis of the new Executive Order (EO) that Obama dumped on America last Friday, which Gaskill calls “a template for the imposition of martial law lite.”
I thank Jay for allowing FOTM to reproduce his analysis (you can also read his article on his own blog, here). To read Obama’s EO in full and my initial observations, click here.
Do you trust this man with that much power?
The March 16, 2012 POTUS Executive Order
By Jay B Gaskill
On March 16, the White House issued an Executive Order that creates and consolidates sweeping powers to acquire, redirect and control a whole range of private resources and activities in the name of defense preparedness.
On the face of it, this piece of work would have been in active development for about 6 months. It replaces at least two earlier specifically referenced executive orders that I haven’t yet read and it will undoubtedly change a number of others, unnamed.
Executive Order 12919 of June 3, 1994, and sections 401(3) (4) of Executive Order 12656 of November 18, 1988, are revoked. All other previously issued orders, regulations, rulings, certificates, directives, and other actions relating to any function affected by this order shall remain in effect except as they are inconsistent with this order or are subsequently amended or revoked under proper authority. Nothing in this order shall affect the validity or force of anything done under previous delegations or other assignment of authority under the Act.
(b) Nothing in this order shall affect the authorities assigned under Executive Order 11858 of May 7, 1975, as amended, except as provided in section 802 of this order.
The Order derives its core rationale from the Defense Production Act of 1950 as amended, which Harry Truman attempted to use when he seized a private steel plant in 1952, but was rebuffed by the Supreme court in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
One provision in the March 16th Order seems tailor made for the Truman seizure attempt
The head of each agency engaged in procurement for the national defense is delegated the authority of the President under section 303(e) of the Act, 50 U.S.C. App. 2093(e), to:
(a) procure and install additional equipment, facilities, processes, or improvements to plants, factories, and other industrial facilities owned by the Federal Government and to procure and install Government owned equipment in plants, factories, or other industrial facilities owned by private persons;
(b) provide for the modification or expansion of privately owned facilities, including the modification or improvement of production processes, when taking actions under sections 301, 302, or 303 of the Act, 50 U.S.C. App. 2091, 2092, 2093; and
(c) sell or otherwise transfer equipment owned by the Federal Government and installed under section 303(e) of the Act, 50 U.S.C. App. 2093(e), to the owners of such plants, factories, or other industrial facilities.
Here are some excerpts from the 1950 law (recently amended) –
Critical and Strategic Materials
The powers granted in this section shall not be used to control the general distribution of any material in the civilian market unless the President finds (1) that such material is a scarce and critical material essential to the national defense, and (2) that the requirements of the national defense for such material cannot otherwise be met without creating a significant dislocation of the normal distribution of such material in the civilian market to such a degree as to create appreciable hardship.
Domestic Energy; Materials, Equipment, and Services
(1) Notwithstanding any other provision of this Act [50 U.S.C. App. § 2061-2171], the President may, by rule or order, require the allocation of, or the priority performance under contracts or orders (other than contracts of employment) relating to, materials, equipment, and services in order to maximize domestic energy supplies if he makes the findings required by paragraph (3) of this subsection.
(2) The authority granted by this subsection may not be used to require priority performance of contracts or orders, or to control the distribution of any supplies of materials, services, and facilities in the marketplace, unless the President finds that—
(A) such materials, services, and facilities are scarce, critical, and essential—
(i) to maintain or expand exploration, production, refining, transportation;
(ii) to conserve energy supplies; or
(iii) to construct or maintain energy facilities; and
(B) maintenance or expansion of exploration, production, refining, transportation, or conservation of energy supplies or the construction and maintenance of energy facilities cannot reasonably be accomplished without exercising the authority specified in paragraph (1) of this subsection.
(3) During any period when the authority conferred by this subsection is being exercised, the President shall take such action as may be appropriate to assure that such authority is being exercised in a manner which assures the coordinated administration of such authority with any priorities or allocations established under subsection (a) of this section and in effect during the same period.
Presidential Executive Orders, by their very nature, operate only within and on the Executive Branch; therefore they cannot override congressional enactments, like statutory law, or the rulings of the courts (when interpreting the laws and the constitution).
For the friends of liberty in this republic, this is small comfort, indeed, because the vast regulatory powers of the federal government are almost totally within the scope of this order, and those very powers have vastly been expanded since the time of Harry Truman’s steel seizure case.
Anything that the executive has been heretofore allowed to do, acting through any agency, commission, bureau, can be controlled by an executive order, because POTUS is the chief executive. This Presidential Order does not attempt to rely on the Commerce Clause for its authority, instead relying on the heavy boots of “national emergency”, “national defense”, “national defense preparedness”, and so on –
(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.
Because of the emphasis on “preparation” the scope of the claimed authority is breathtaking.
(m) “Strategic and critical materials” means materials (including energy) that (1) would be needed to supply the military, industrial, and essential civilian needs of the United States during a national emergency, and (2) are not found or produced in the United States in sufficient quantities to meet such need and are vulnerable to the termination or reduction of the availability of the material.
(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.”
There are at least three developments on the presidential radar (other than his ongoing reelection campaign) to which this package obviously relates.
- China has been actively locking up the world’s supply of rare earth elements, the arcane but indispensable magic ingredient of the entire computer/electronics industry. The US has scattered and undeveloped sources for some, but by no means all rare earths elements.
- Pending trouble in the Middle East could cripple oil supply lines for months, driving up fuel oil and gasoline prices and creating critical shortages, even a partial breakdown in the national transportation system.
- The reliable flow of the more mundane essential materials on which the US industrial capacity (such as it is) critically depends (think steel, titanium, copper, aluminum), not to mention various critically important offshore manufacturing arrangements (think i-Pads, jet cockpit displays, GPS devices) for which we have no effective domestic counterparts, could be dramatically disrupted by economic and international political developments.
- Domestic terrorism theoretically could disrupt agriculture by interdicting rail transport, even via some biological agent that, say, poisons water supplies, but that set of scenarios is a bit too theoretical to be taken as seriously as the first three.
Industrial Policy is the full-on, top-down imposition of politically imposed objectives (for the “national good”) on the major producers in the private sector, often concealed under the rubric, “patriotic cooperation”. The virtual cheek-to-jowl cooperation between Krupp, the German industrial giant, and the Nazi government is the paradigm example. Industrial Policy crosses a number of lines of concern to those of us who value freedom. As of March 16, 2012 in the USA, we’ve crept over several such lines and are poised to jump the rest.
Under the umbrella of defense preparedness, the President’s newest Executive Order reeks of creeping Industrial Policy. Here are some samples that might raise eyebrows:
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.
…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;
…perform industry analyses to assess capabilities of the industrial base to support the national defense, and develop policy recommendations to improve the international competitiveness of specific domestic industries and their abilities to meet national defense program needs.
The Secretary of each agency delegated authority under subsection (a) of this section (resource departments) shall plan for and issue regulations to prioritize and allocate resources and establish standards and procedures by which the authority shall be used to promote the national defense, under both emergency and non-emergency conditions.
To create, maintain, protect, expand, or restore domestic industrial base capabilities essential for the national defense, the head of each agency engaged in procurement for the national defense is delegated the authority of the President under section 303 of the Act, 50 U.S.C. App. 2093, to make provision for purchases of, or commitments to purchase, an industrial resource or a critical technology item for Government use or resale, and to make provision for the development of production capabilities, and for the increased use of emerging technologies in security program applications, and to enable rapid transition of emerging technologies.
(b) Materials acquired under section 303 of the Act, 50 U.S.C. App. 2093, that exceed the needs of the programs under the Act may be transferred to the National Defense Stockpile, if, in the judgment of the Secretary of Defense as the National Defense Stockpile Manager, such transfers are in the public interest.
Another concern -Does this Order contemplate a shadow, emergency government, consisting of NDER units???
I’ve read and reread the following provisions of the Order and I remain unsettled. Read it carefully, yourself.
Sec. 501. National Defense Executive Reserve. (a) In accordance with section 710(e) of the Act, 50 U.S.C. App. 2160(e), there is established in the executive branch a National Defense Executive Reserve (NDER) composed of persons of recognized expertise from various segments of the private sector and from Government (except full time Federal employees) for training for employment in executive positions in the Federal Government in the event of a national defense emergency.
(b) The Secretary of Homeland Security shall issue necessary guidance for the NDER program, including appropriate guidance for establishment, recruitment, training, monitoring, and activation of NDER units and shall be responsible for the overall coordination of the NDER program. The authority of the President under section 710(e) of the Act, 50 U.S.C. App. 2160(e), to determine periods of national defense emergency is delegated to the Secretary of Homeland Security.
(c)The head of any agency may implement section 501(a) of this order with respect to NDER operations in such agency.
(d) The head of each agency with an NDER unit may exercise the authority under section 703 of the Act, 50 U.S.C. App. 2153, to employ civilian personnel when activating all or a part of its NDER unit. The exercise of this authority shall be subject to the provisions of sections 501(e) and (f) of this order and shall not be redelegated.
(e) The head of an agency may activate an NDER unit, in whole or in part, upon the written determination of the Secretary of Homeland Security that an emergency affecting the national defense exists and that the activation of the unit is necessary to carry out the emergency program functions of the agency.
(f) Prior to activating the NDER unit, the head of the agency shall notify, in writing, the Assistant to the President for Homeland Security and Counterterrorism of the impending activation.
It’s all about the teeth.
In routine practice, much of this Executive Order is designed to streamline and expedite procurement processes already in place, bypassing bidding and providing emergency purchase loans. And it imposes an overall strategic plan that is aimed primarily at preventing spot shortages and supply disruptions. So far, this is in the nature of an incremental fix. But we need to consider the players, the not-so-hidden agendas and the potential for abuse.
Because there are no meaningful disclaimers or limitations, constitutional or otherwise.
By design rather than innocent omission, I suspect that the architects of this Order have produced a template that works quite well in connection with the imposition of “martial law lite”. As to that notion I invite you to imagine a condition in which the acquisition by the government of otherwise private resources and the redirection of domestic civilian priorities is rapidly and expeditiously accomplished using a combination of loans, fine and outright takings.
Think of it, if you will, as if we were living in exposed tents on a large plain. A few feral predators wander about, usually keeping out of sight. But one day, we wake up to notice that things have changed overnight. The predators are now lining up rank by rank with great discipline. They surround your encampment. They have purpose.
We’ve been led into complacency by government inefficiency.
We wake up in an era when a single administrative agency (one of hundreds operating within the executive branch) has the power to write regulations that have the force of the criminal law, the power to prosecute and even to adjudicate.
One such agency has recently declared the very carbon dioxide you are exhaling when you read this to be a dangerous pollutant.
Given the gradual stealth power grab by the federal regulator bureaucracies over the last half century, with scarcely a whimper of protest, are we entitled to be gravely concerned when the Executive seeks to consolidate all that power for the noble purpose of “preparedness”?
You bet we are.