The “False Alarm” of the latest Executive Order

A few nights ago I watched John Frankenheimer’s Seven Days in May (1964). And a few nights before that, his The Manchurian Candidate (1962). I was in a foul, pessimistic mood, given the nature of the presidential election campaign and the vacillating prospects of seeing a changing of the Red Guard in the White House. Both movies, excellent in their direction, casting and theme, dramatized conspiracies to take over the United States government and establish a dictatorship.

Then, on Sunday morning, March 18th, I learned about the National Defense Resources Preparedness Executive Order, signed into law by President Barack H. Obama on March 16th. As some news blogs noted, Friday was a curious time to inform the nation of the NDRP EO, or “EO 12919” (for Executive Order), an EO to which the mainstream media seemed oblivious and un-newsworthy.

I immediately recalled Directive 10-289 from Ayn Rand’s prophetic novel, Atlas Shrugged, in which the Head of State, at the behest of his national economic planner, issues a decree that freezes everyone and everything in place to combat an ongoing, government-caused national “emergency.”

Previously, in December, I had written about the ambiguous language in certain sections of the National Defense Authorization Act for 2012 (NDAA), language that could authorize the warrantless arrests of American citizens for cocking a snook at the government and treating said citizens as enemy combatants or prisoners of war subject to indefinite detention in conditions less salubrious than those enjoyed by actual enemy combatants now housed in Gitmo. EO 12919 seemed to complement the NDAA. Searching for the text of the EO on the Internet, I saw that it was the subject of scores of blog sites and news outlets, most claiming that it was a move by Obama to take over the government or establish tyranny. In fact, many of them cited Directive 10-289.

I found the full text of the EO on the White House site, and also a critique of it on Hot Air by Ed Morrissey, “’National Defense Resources Preparedness’ executive order: Power grab or mere update?” I read the EO, expecting to find the worst; however, the droll bureaucratic language almost caused me to nod off. It dwelt mostly on shifts of delegated powers among the Cabinet and federal departments to “identify, assess, be prepared, improve, foster cooperation.” Most of the language seemed to be a legitimate mandate for a government charged with defending the country from its enemies.

Then I read Morrissey’s comments. Morrissey justifiably chided everyone for being alarmed by EO 12919. In a thoroughly researched article, he stressed that the EO is merely an amendment to an EO enacted in 1950 during the Korean War and subsequently revised to accommodate technological and policy changes since then.

Again, this is almost identical to EO 12919 from 18 years earlier [1994]. Note what this EO specifically orders: identify, assess, be prepared, improve, foster cooperation. None of these items claim authority to seize private property and place them at the personal disposal of Obama. What follows after Section 103 are the directives for implementing these rather analytical tasks, mostly in the form of explicit delegations of presidential authority to Cabinet members and others in the executive branch.

If one takes a look at EO 12919, the big change is in the Cabinet itself. In 1994, we didn’t have a Department of Homeland Security, for instance, and some of these functions would naturally fall to DHS. In EO 12919, the FEMA director had those responsibilities, and the biggest change between the two is the removal of several references to FEMA (ten in all). Otherwise, there aren’t a lot of changes between the two EOs, which looks mainly like boilerplate.

In fact, that’s almost entirely what it is. The original EO dealing with national defense resources preparedness was issued in 1939 (EO 8248) according to the National Archives. It has been superseded a number of times, starting in 1951 by nearly every President through Bill Clinton, and amended twice by George W. Bush.

As Morrissey writes, many “right-wing” bloggers susceptible to conspiracy theories jumped the gun, asserting that EO 12919 was a creature of the current administration. That was my original supposition, as well. Morrissey was seconded in his correction by Doug Mataconis of Outside the Beltway:

Executive Order itself is nothing more than a restatement of policy that has been in place in decades and grants no authority to the President or the Cabinet that they don’t already have under existing law. …

There are, perhaps, some issues worth discussing that this EO raises. The fact that the President of the United States is still exercising authority granted during the Korean War and the height of the Cold War is yet another reflection of how power, once assumed by the Imperial Presidency, is never surrendered.

The fact that an Executive Order like this was released on a Friday afternoon and has been largely ignored by the traditional media is an indication of just how easy it is for politicians to manipulate the news cycle. And the idea that the government has authority like that described in this document, even only in theory, and that most Americans aren’t even aware of it, is a reflection of just how little we know about the things that are done in our name. Those are all legitimate issues, but they go far deeper than this one relatively innocuous Executive Order.

So, the news about EO 12919 is that there is no news.

Still, Mataconis does question the dubious legitimacy of granting the executive branch powers that could easily morph from ensuring that the government has the equipment, funding, and means to deal with “national emergencies” – which remain undefined throughout the document, which could mean a war, or a natural catastrophe – to powers to “manage” any crisis the White House could find handy or even manufacture to excuse an assumption of dictatorial powers.

Furthermore, actions sanctioned by the EO do not require Congressional approval. Precedents include President Bush not asking for a formal declaration of war against Iraq, albeit taking military action, or Bill Clinton’s Bosnian “intervention.” Or even Obama’s Libyan “intervention.” The EO could have been invoked, for all we know, to take over General Motors (“too big to fail”), or be invoked to ensure the survival the Patient Affordable Protection Act should the Supreme Court declare it unconstitutional.

There are two ways that presidents can enact initiatives without congressional approval. Presidents may issue a proclamation, often ceremonial in nature, such as naming a day in honor of someone or something that has contributed to American society. A president may also issue an executive order, which has the full effect of law and is directed to federal agencies that are charged with carrying out the order. Examples include Franklin D. Roosevelt's executive order for the internment of Japanese-Americans after the attack on Pearl Harbor, Harry Truman's integration of the armed forces and Dwight Eisenhower's order to integrate the nation's schools.

Congress cannot directly vote to override an executive order in the way it can a veto. Instead, Congress must pass a bill canceling or changing the order in a manner they see fit. The president will typically veto that bill, and then Congress can try to override the veto of that second bill. The Supreme Court can also declare an executive order to be unconstitutional. Congressional cancellation of an order is extremely rare.

There are many troubling points in EO 12919, one of which is the indeterminate nature of the “national emergencies” that would justify the decree of an EO. Another is the ambiguous statement that:

The head of each agency otherwise delegated functions under this order is delegated the authority of the President under sections 710(b) and (c) of the Act, 50 U.S.C. App. 2160(b), (c), to employ persons of outstanding experience and ability without compensation and to employ experts, consultants, or organizations. [Sec. 502. Consultants]

Which may or may not mean indentured servitude. Time will tell

“Section 702 of the Act, 50 U.S.C. App. 2152,” as well as other Acts, is frequently cited throughout EO 12919. Section 702 here concerns “emergency” powers approved in 2003. But one must wonder if the Founders had intended the government to collect so much information on not only the economy, its industrial and technological base (which the government treats off-handedly as a personal asset), but on the private citizens who make it all possible. I think not.

And how does the federal government usually “foster cooperation,” except by extortion, fraud, bribery, falsehoods, blackmail, and direct physical force? It is not as benign a term as it appears.

Mac Slavo at The Intel Hub also “jumps the gun,” but ends his column with a calmer warning:

When implemented simultaneously with existing laws and Presidential orders, the National Defense Resources Preparedness executive order establishes a clear chain of command and control over all aspects of American life in what can only be described as a police state under martial law.

And that’s the rub. The groundwork for a fascist control of the country is there. It has been carefully laid over decades. And it may be that even the White House knows that it is too early to implement simultaneously all those “emergency” orders and laws, because the reaction by Americans would make the Tea Party phenomenon look like a friendly marital spat.