Question Washington

March 21, 2012

Obama’s Executive Order… Should we ignore the man behind the curtain?

Filed under: Obama — questiondc @ 3:15 pm

On Friday, March 16, 2012, President Obama signed an Executive Order which has created a huge flap in the blogosphere and media outlets.  The concern over this order being a writ of seizure and a precursor to martial law has exploded wildly.  I admit that I have my concerns as well.  My concerns are not so much in the verbiage contained within the newly minted EO but in the players involved with the execution of this order.

There are numerous articles and analyses running the typical gamut of “conspiracy” to “nothing to see here, move along”.  While reading through this cornucopia of opinions and views, there were several that struck me enough to look even closer into the detail myself.  One article written by Ed Morrissey at Hot Air( ) is a summation of different viewpoints on the Order which effectively compares it to previous orders and cites necessary updating given the changes in the Cabinet offices.  So according to Ed’s analysis and the compilation of experts, there’s “nothing to see here”.  If there were a more in-depth analysis instead of a simple comparison of words from previous orders and less use of “almost” and “mostly”, I might be inclined to agree.  I remained unconvinced and so, continued to dig.

Another “nothing to see here” article, referenced by Morrissey, was written by Attorney Doug Mataconis in his blog ( ).  As Doug states:

“It all sounds pretty scary, and it wasn’t long before the usual suspects were citing this as evidence of some kind of plan for martial law, just as there were people on the left and far-right asserting that George Bush was going to declare martial law and cancel the elections in 2004 and 2008. Considering who it was who was spreading the meme that this was some kind of power grab by the Obama Administration, I wasn’t inclined to believe it to begin with. However, once you actually look at the facts (yes, I know, how dare I muddle up a good conspiracy theory with actual facts) it becomes pretty clear that not only is the reaction to this wildly over the top in some corners, but the 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.” (emphasis added)

This sounds like someone who knows what they are talking about so, should I buy in and continue on my merry way without concern?  Most people would.  I’m not most people.  Now, before you get the idea that I’m attempting to perpetuate a “conspiracy theory”, let me explain that I am simply looking for edification as to the routine nature of this Executive Order which I have not located in the above mentioned articles.  While some might say that I’m ignoring stare decisis et non quieta movere, I still wanted a more thorough analysis that did not include the phrases “mostly” and “almost”.

While looking at the variations between the previous orders and the one recently issued, there was one particular section that caught my eye.  The verbiage in Sec. 501(b) reads as follows:

“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.” (emphasis added)

So, let me get this straight, the President has given the authority to determine periods of National Defense Emergency to the Department of Homeland Security?  Is that really what I’m reading?  Time to look at the Defense Production Act, Section 710(e), to see if this is just a routine change:

(e) The President is further authorized to provide for the establishment and training of a nucleus executive reserve for employment in executive positions in Government during periods of national defense emergency, as determined by the President. (emphasis added)

Now for some questions. Where in the Executive Order, or in the Defense Production Act, does it explicitly provide the authority of the Secretary of Homeland Security to declare a National Defense Emergency?  Does this Order now give the Secretary of Homeland Security the Presidential power to declare a national defense emergency?  What other Cabinet level has ever been granted that power?  How is the granting of this power “routine”? Does this section of the EO violate 50 USC CHAPTER 34 ?  What additional powers, if any, does this provide DHS under the National Defense Authorization Act recently signed by the President? You remember the NDAA, the one that has the potential for holding “terrorists” for an unlimited time without trial.  Again, this is not a conspiracy theory pushing attempt but it raises questions that have yet to be addressed by the legal scholars that have taken an approach that reminds me of the Wizard of Oz, “Pay no attention to the man behind the curtain”.

With these questions on the table it becomes of greater concern when you consider the person to which this power has been delegated.  Janet Napolitano.  Her track record has been less than stellar and she has even called our Veterans returning from Iraq and Afghanistan potential terrorists. The report issued by her office “Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment.” (see article) coupled with her active attempts to invalidate State laws adopted to protect our borders one has to wonder about the authority granted to her and why.  The legal scholars haven’t raised the question but I am.  Now I would like to see if any of them will take the opportunity to do more than a cursory look at the verbiage differences and perform a more detailed review.

The power under the Defense Production Act has always provided for a Nationalization of American Assets in times of emergency and the Executive Orders have been updated to reflect changes in Cabinet level positions.  The authority to redirect production in the best interest of the United States and its citizens has been the law of the land for decades without much scrutiny or question being raised.  However, I can find no precedent for the declaration of a National Defense Emergency being authorized by anyone other than the President or Congress.  I would like to take the approach that “there is nothing to see here” but with the things I’ve already witnessed that have occurred during the tenure of the current administration, I just can’t.


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