The March 16th Executive Order can be hazardous to our health.

The Executive Order slightly modifies prior justifications for
governmental control over all sectors of the economy. Expansive authority can still be exercised at the discretion of the President
and those
whom he selects under broadly undefined circumstances and with little or no outside review.

It is potentially very hazardous, particularly during the reign of a reelected President Obama.

Because I wanna!

Many articles have already been written about this Executive Order signed by President Obama on March 16th. They have generally suggested that the nation as we know her is about to die because of it. Here is one of them. I will not deal here at with the matters those articles have already covered.

According to the first paragraph of the Order,

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 et seq.), and section 301 of title 3, United States Code, and as Commander in Chief of the Armed Forces of the United States, it is hereby ordered as follows:

The full text of the Defense Production Act of 1950, as from time to time amended, is provided here. It was enacted on September 8, 1950, less than three months after the Korean Conflict had begun “unexpectedly” with a successful North Korean attack on South Korea on June 25, 1950. During the years between the end of the Second World War and the Korean Conflict, President Truman’s Secretary of Defense bragged that the United States had cut defense spending “to the bone and through the bone.” Fatigued with war, we had become truly unprepared to respond militarily to the North Korean attack. General MacArthur’s garrison command in Japan sought Japanese redevelopment as its principal goal and readiness to engage in another war even nearby was low on the agenda, if it was there at all. After the North Korean attack, valiant national efforts to make up for our military deficiencies were necessary. Now, sixty years later, considering the changes in military objectives and abilities under President Obama, we may well be in a comparable situation. However, the current Order is an inept way of extricating ourselves; so are its predecessor Orders.

The Defense Production Act of 1950, as amended, consists of forty-nine pages of dull and perhaps intentionally ambiguous text. For those disinclined to read it, here is a fair summary of the Act’s provisions from Wikipedia.

The Act contains three major sections. The first authorizes the President to require businesses to sign contracts or fulfill orders deemed necessary for national defense. The second authorizes the President to establish mechanisms (such as regulations, orders or agencies) to allocate materials, services and facilities to promote national defense. The third section authorizes the President to control the civilian economy so that scarce and/or critical materials necessary to the national defense effort are available for defense needs.[1]

The Act also authorizes the President to requisition property, force industry to expand production and the supply of basic resources, impose wage and price controls, settle labor disputes, control consumer and real estate credit, establish contractual priorities, and allocate raw materials to aid the national defense.[1]

According to this article by Ed Morrissey at Hot Air, the “new” executive order does not modify prior executive orders much at all; generally it deals with formal matters, such as the current names of various federal departments and agencies. For the most part, I agree. However, Mr. Morrissey has this to say about what may be the only substantive change in language:

Update III: One commenter notes that Obama has added to Section 201(b) the phrase “under both emergency and non-emergency conditions.” In 12919, though, the duties of the Cabinet Secretaries were not limited to emergency situations in Section 201(b), either. And in both EOs, section 102 specifically notes that the EO is intended to ensure defense preparedness “in peacetime and in times of national emergency.”

Words mean what I want them to mean.

That seems to be inadequately responsive. Orders can be modified in facially innocuous ways to make them less ambiguous; that is often a good thing because it can limit the unbridled authority of those acting under them. However, orders can also be modified to make them more ambiguous. In some contexts while practicing law, I found intentional ambiguity to be a very useful tool. Various broadcast applications submitted to the FCC had to promise to do things. I prepared many such applications for our broadcast clients. The more ambiguous those promises could be written the better, because sufficiently ambiguous promises could not later be easily challenged as not having been met.

In the context of an executive order, ambiguity can be used to give those acting under it greater latitude — and therefore fewer restraints — than they would previously have been able to defend if challenged. The “non-emergency” modification of Section 201(b) apparently makes it less necessary than previously to define an emergency or even to characterize something as an emergency. Emergencies can, obviously, arise during peacetime as well as in wartime. So can problems not amounting to emergencies. The phrase “in peacetime and in times of national emergency” could possibly be stretched to include a non-emergency situation arising in peacetime, but it will now be much easier without the need for any difficult semantic stretch. I can not offhand think of any reasons beyond these for the change and find the change troubling.

However, whether the current Order actually changes anyone’s authority significantly is less important than that this sort of stuff has not already been done away with in its entirety. We need to do many things to revitalize an effective military force because there are more than a few international dangers for which we are unprepared. The March 16th Executive Order should not even be on a list of such things.

It very important that Barack Obama is now the President, is the Commander in Chief and that he has vowed to implement his agendas when and how he deems appropriate, with or without the Congress. The March 16th Order may or may not have been issued with a view to enhancing President Obama’s abilities to do that. Perhaps the staffers in the Executive Office Building had nothing else to do and felt a need to do “something.” I cannot read President Obama’s mind, only his words and his actions and those of his subordinates; there have been enough of those to raise substantial concerns. I consider him neither fit to hold office nor to wield the vast powers set forth in the March 16th Order — or in the various predecessor orders.

I am the Greatest!

I do trust President Obama, but only so far. Between now and November 6th, I trust him to do whatever he deems beneficial for his reelection. Things likely to help President Obama to get reelected may well not be beneficial to the nation. For example, continued increases in gasoline prices might well diminish his chances of reelection. Perhaps he could make things better (or at least seem to do so) until after the election (when it will no longer matter) by drawing down the Strategic Oil Reserve. That could well be harmful to the nation, because it would diminish the availability of oil for military use in the event of additional military requirements. Perhaps that occurred to President Obama when he tried to get Israel not to attack Iran’s nuclear weapons program until after the November election. But what if Israel does attack, before the election? After the election? Probably less likely, but what if Iran attacks Israel before the election? After the election? Will the military have to rely on pond scum algae based technology?

If we make the terrible mistake of reelecting President Obama, I trust that he will do far more to advance his agendas than he has done thus far — after his reelection, he will have no need to campaign for reelection and will have no need to seek any consensus as to anything he can get away with “with or without the Congress.” There will be little to keep him from further weakening our nation and diminishing the rights of her citizens. Those are the only things I trust him to do. I most emphatically do not trust him not to use his March 16th Executive Order and all other tools at his disposal for such purposes.

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About danmillerinpanama

I was graduated from Yale University in 1963 with a B.A. in economics and from the University of Virginia School of law, where I was the notes editor of the Virginia Law Review in 1966. Following four years of active duty with the Army JAG Corps, with two tours in Korea, I entered private practice in Washington, D.C. specializing in communications law. I retired in 1996 to sail with my wife, Jeanie, on our sailboat Namaste to and in the Caribbean. In 2002, we settled in the Republic of Panama and live in a very rural area up in the mountains. I have contributed to Pajamas Media and Pajamas Tatler. In addition to my own blog, Dan Miller in Panama, I an an editor of Warsclerotic and contribute to China Daily Mail when I have something to write about North Korea.
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14 Responses to The March 16th Executive Order can be hazardous to our health.

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  12. Good read, I think. I reposted one last night and then did the research, and I came to same conclusion.

    That’s one thing no one seems to remark on, this administration is either very sloppy (or intentionally ambiguous) in their language. It’s part of the reason for the growing distrust.

    If nothing else was proved this weekend it’s that without controlling the internet, they’re going to have a major problems trying to control the country. Not that that would be that hard, extraconstitutionally, of course.

  13. a12iggymom says:

    I have a guestion on the ‘loans and guarentees of money’ in this thing. Does this surpass the House, which holds the purse strings, thus voiding the Constitution in these matters?

    • a12iggymom,

      possibly not. This is at the very end of the Order:

      Sec. 804. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect functions of the Director of OMB relating to budgetary, administrative, or legislative proposals.

      (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

      (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. (Emphasis added)

      A very detailed reading, not only of the Order but of various statutes and other sources it cites and that the enabling legislation references, would be needed to provide a better response.

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