George D. Burns, Jr
On 16 March 2012 the White House posted on its web site an unusual and potentially disturbing Executive Order (EO). The order, signed by President Obama, appears to expand the scope of the Executive Branch by adding peacetime powers to existing wartime powers. The EO is titled National Defense Resources Preparedness. It is unusual because it appears to equate peacetime with wartime powers. It is disturbing because of the vagueness of the peacetime authorities it grants selected executive agencies in order to "promote the national defense". According to the White House the EO simply updates an existing EO 12919 dated June 1994. This comports with the White House's contention that it updates existing disaster preparedness law and is not in preparation for a war with Iran or imposing martial law.
This paper briefly summarizes the 16 March 2012 EO, provides EO background and considers the consequences of expanding Presidential powers.
Brief Background Of Presidential Executive Orders (EO). EOs are directives to federal agencies, departments and employees and focus on Executive Branch operational management. Even though not specifically cited in the Constitution EOs enable presidents to execute responsibilities enumerated in the Constitution and laws passed by Congress. Once published in the Federal Register for a period of 30 days EOs become law.
EOs have been used since George Washington. Because of record keeping shortfalls a complete accounting of their exact numbers and respective content are not always known. However, until the 1900s they were used sparingly and for the most part conformed to Constitutional limitations and imposed no burdens on business or individual citizens. Presidents Adams, Madison and Monroe only issued one EO each. Teddy Roosevelt started the expansion of their use by issuing 73. Woodrow Wilson followed suit by issuing 116. The number of EOs ballooned to 3,522 under Franklin Roosevelt. George W. Bush signed 287. As of this paper Barack Obama has signed at least 112.
Teddy Roosevelt started the process of expanding the scope of EOs. For example, he designated selected lands for wildlife refuges and military installations both of which exceed Executive Branch authorities. World War I resulted in extensive use of EOs by President Wilson. He seized control of the US economy, airwaves, waterways, and limited freedom of speech. After the war these powers were terminated. While it can be argued that most of his wartime actions were justified, they charted a new course by opening the door for EO use well beyond Constitutional bounds, traditional limits of EOs broached by Wilson facilitated Franklin Roosevelt's proclamation of 6 March 1933. In it Roosevelt declared the country to be in a "state of emergency" due to the ongoing banking crisis. To legitimize Presidential declarations of national states of emergency Roosevelt had previously requested Congress amend Wilson's War Powers Act granting him the authority to do so. The country remained under Roosevelt's proclamation until a new one was declared by President Carter in 1979 during the Iranian hostage crisis. President Bush issued his terrorism state of emergency 14 September 2001 later renewed by President Obama 10 September 2009. It is still in effect.
Presidential Law Making Authorities And The Constitution. The Constitution does not specifically grant or deny the President authority to issue EOs. However, the Constitution does specify that lawmaking authority rests solely with the Legislative Branch. Presidential powers are limited, unless specifically authorized by Congress.
Article I of the Constitution enumerates the law making responsibility assigned to Congress while Article II enumerates the authorities of the Executive. Article II does not assign any law making authorities to the President. The President is responsible for executing laws passed by Congress. Llittle actual power is assigned the President for the peacetime domestic affairs.
Congress does not approve EOs. Thus, Presidents are free to set policy within Constitutional limits without Congressional approval or public debate. Most, but not all, EOs conform with Constitutional limits. EOs have been used for such diverse purposes as authorizing federal workers collective bargaining rights, establishing wildlife refuges, expanding national forests, establishing Executive Branch agencies, imposing nationwide price freezes, authorizing overseas military operations as well as overseas covert operations. The first example is clearly within Presidential authority. Because the others and those like them arguably exceed Executive Branch powers, they require Congressional statutory authority, which is not always granted.
Any EO gains legal status with the passage of time absent a Congressional challenge. Should Congress challenge an EO it must enact a bill that either cancels or revises it. Any revised EO gaining Presidential approval becomes law. If the President elects to veto a congressional revision his version becomes law unless overturned by a two-thirds majority of Congress. The Supreme Court can declare an EO unconstitutional. Successful challenges of EOs by Congress and the Supreme Court are very rare.
Given All This Is There Reason For Concern? The President's 16 March 2012 EO is not the problem. Rather, it is a symtom of the problem. The real problem is the systematic unchecked expansion of presidential powers. Many of the founding generation had serious concerns regarding this possibility, Patrick Henry notable among them. The system of checks and balances the founders put in place is now seriously out of balance. Over time the Executive Branch has amassed enormous power, and continues to do so. Along the way the powers vested in Congress have eroded. President Obama's most recent EO is just the latest example.
In Federalist No. 46, regarding the law making powers granted by the Constitution, James Madison wrote "The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments in time of peace and security." That was the original intent. Of course times and circumstances have changed but because he could not imagine the substantive realignment of enumerated Constitutional powers now extant Madison said in Federalist No. 47 that "The accumulation of all powers, legislative, executive, and judiciary, in the same hands...may be justly pronounced the very definition of tyranny." Today our Presidents have a potentially dangerous amount of power. Nonetheless, a large percentage of the voting public believe this is the way it should be and as demonstrated by their actions so too members of Congress. Presidents Bush during his two terms and now Obama assumed imperial presidency tendencies. A recent example occured last December when, during an on-air interview, President Obama said "...what we're going to have to do is continue to make progress on the economy over the next several months. And where Congress is not willing to act, we're going to go ahead and do it ourselves."
Another example comes from the Secretary of Defense, Leon Panetta. During a Senate Armed Services Committee hearing on 8 March 2012, Panetta was asked by Senator Sessions "Do you think you can act without Congress and initiate a no-fly zone in Syria without congressional approval?"
Speaking for the Executive Branch, Penetta replied in part that "...our goal would be to seek international permission. And we would -- we would come to the Congress and inform you and determine how best to approach this, whether or not we would want to get permission from the Congress. I think those are issues we would have to discuss as we decide what to do here." Sessions reminded Panetta that "The only legal authority that's required to deploy the U.S. military is the Congress and the president and the law in the Constitution." Article 1, Section 8, Clause 11 clearly states that only Congress has the power to declare war. Seeking UN permission first and then "informing" Congress represents a clear violation.
However, on 20 December 1945, a measure signed by President Truman titled "The United Nations Participation Act of 1945 (UNPA)" muddies the waters. It effectively grants US President authority to "negotiate a special agreement or agreements with the Security Council" regarding the use of US military personnel and facilities in support of UN peacekeeping and peace enforcement missions. This was likely the basis of Panetta's position before the Senate. It means that when Presidents decide to involve the US in UN sanctioned actions they can act without Congressional authority, a clear violation of the Constitution. Both Congress and the President Truman were responsible for establishing this policy. Together they neutered legitimate Congressional powers.
It is true that the political climate has fundamentally changed since our founding and the scope of national and global issues have expanded. Many hold that in today's dynamic domestic and international environment there are advantages to granting enormous powers to a single individual. They maintain that our republican system is too cumbersome. They contend we need someone who can act quickly without "needless" encumbrances imposed by the Constitution, Congress and the public. However, history tells us that such thinking is dangerous. It usually results in the rise of charismatic, overly ambitious, arrogant and self-serving leaders claiming to have solutions to prevailing problems. Once in place constitutional constraints are abandoned, standing government institutions co-opted and the will of the people ignored. These scenarios do not end well. The Germans of the 1930s didn't think it could happen to them, but it did.
F.A. Hayek, in The Road to Serfdom, explains how gradual government sponsorship of socialization from the time of Chancellor Otto von Bismarck's rule (1871-1901) to the rise of Adolf Hitler in 1933 greatly facilitated his consolidation of political power in Germany. An eerily similar socialization trend overseen by our government has been ongoing for over 100 years.
Here's how tyranny came about in Germany. Following the end of World War I times were extraordinarily difficult, the economy ruined. Long standing social programs were decimated. The elections of 1932 offered the country hope for change. Presidential and Reichstag (congress) elections were held with none of the candidates for president gaining a majority of the votes. A presidential runoff resulted in Paul von Hindenburg's election with Hitler finishing a distant second. Much to Hitler's chagrin, instead of him, Hindenburg appointed Franz von Papen Chancellor. Papen promtly disolved the Reichstag and called for new elections. Determined to make things difficult Hitler's National Socialist Party (Nazi) created chaos across the country. Martial law was imposed in Berlin as a result. Throughout the campaign Hitler drew huge crowds, popularizing his party as evidenced by the Nazis gaining the most but not a majority of Reichstag seats. In short order the Reichstag became hopelessly deadlocked. Because he was unable to get a coalition within the Reichstag Hindenburg fired Chancellor Papen and appointed Kurt von Schleicher in his place. Another Reichstag election followed. While the Nazi's numbers in the Reichstag declined they remained the largest party. The newly elected Reichstag could not break the deadlock. Just 57 days after his appointment Chancellor Scheicher resigned. In January 1933 President Hindenburg appointed Hitler Chancellor. Crisis conditions facilitated his consolidation of political power. In February 1933 the infamous Reichstag fire was secretly started by Nazi operatives. The next day Hitler convinced Hindenburg to issue a decree to protect the country from Communist terrorists who he claimed were responsible. The decree suspended constitutionally established civil liberties. Two weeks later Hitler convinced the Reichstag to "temporarily" transfer all its powers to him so he could deal with the crisis. The rest is history.
Conclusion. While the evidence suggests that the EO that prompted this paper is an example of long standing Executive Branch precedence, history reminds us that harm results if too much power is vested in a single executive. The real issue, then, is the unchecked accumulation of American presidential powers and how they can be potentially used. That is of far greater concern than any single presidential EO. This dangerous trend must be stopped; but, it will not happen without sustained, proactive public involvement. Both occupants of the Executive Branch and Congress have demonstrated they will not do so. Therefore, we must do three things: 1) Raise our voices in concern. 2) Elect political candidates respectful of the Constitutionally established balance of powers and who are informed, responsible, ethical and honorable. 3) Hold all elected officials accountable.
Bibliography:
Executive Order: National Defense Resources Preparedness, 16 March 2012, The White House Web site
http://www.whitehouse.gov/the-press-office/2012/03/16/executive-order-national-defense-resources-preparedness
White House Calls Executive Order 'Standard and Routine' After Web Eruption, by Fred Lucas, 19 March 2012 edition of CNSNews.com
http://cnsnews.com/news/article/white-house-calls-executive-order-standard-and-routine-after-web-eruption
The Federalist: A Commentary of the United States, edited by Robert Scigliano, Copyright 2000 by Random House, Inc
President Obama Interview with KOAA-TV, a local news channel from Colorado Springs, Colorado, posted on Real Clear Politics Video on 14 December 2011
http://www.realclearpolitics.com/video/2011/12/14/obama_where_congress_is_not_willing_to_act_were_going_to_go_ahead_and_do_it_ourselves.html
The Road to Surfdom, by F.A. Hayek, 1944, the 2007 version edited by Bruce Caldwell, published by the University of Chicago Press.
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