By Dr. Harold Pease
The Founding Fathers’ concept of separation of powers has been heavily altered the last fifty years. The Constitution allowed only the Legislative Branch to make federal law (Art. I, Sec. I, Clause I). A law’s review by 536 individuals (435 members of the House, 100 Senators and 1 President) served as a filter for bad law as only one bill in thirty survived the rigid scrutiny of both branches and bore the signature of the President.
In light of the President’s recent Executive Order, National Defense Resources Preparedness, signed March 16, 2012, which should be the focus of considerable media attention, we need to examine the constitutionality of the executive order process that increasingly allows the executive branch to replace Congress as the principal law-making branch. But first a reminder of what this Executive Order does.
By a mere stroke of the pen President Barack Obama renewed and expanded the Bill Clinton, June 3,1994, National Defense Industrial Resources Preparedness, Executive Order 12919, that authorized the executive department’s take-over, in case of a national emergency, of all civil transportation including the “movement of persons and property by all modes of transportation … within the United States.” Other things specifically listed to be under his sole control were: all forms of energy, all farm equipment, all food resources, all food resources facilities, all health resources, and all water resources (Section VIII). National emergency was never adequately defined therefore, presumably, left to the discretion of the President alone as to when such conditions warranted his implementation or removal of the emergency.
Section 102 of the Obama decree broadened the Clinton E.O. to apply “in peacetime and in national emergency” which means that parts of the edict are in effect with his signature alone without any emergency identified. We no longer need to wait for an emergency. Moreover, according to Section 103(b), compliance can be forced upon all needed “subcontractors and suppliers, materials, skilled labor, and professional and technical personnel.” Imagine private contractors being required to serve against their will. Conspicuously omitted was any role for Congress in this “martial law type” edict.
Today, though the E.O. process, the President makes half as many laws (decrees if you prefer) as does the Legislative Branch—about three a week. Some few laws of Congress need a statement of implementation by the president. For example, President Washington was directed by Congress to create Thanksgiving Day as a national holiday. This he did by Executive Order, which was constitutional. An executive order, if it simply implements a single, recently passed (within weeks), law of Congress is fine. But, when he instead takes multiple pieces of many laws passed by ancient congresses, he effectively creates new law without any review and unconstitutionally usurps the powers of Congress. This has happened through much of the 20th Century.
Even more blatantly unconstitutional is the practice of presidents, beginning with Richard Nixon, of not even attempting to justify their Executive Orders with ancient pieces of authorization, instead, just decreeing something to be law. These are known as presidential decrees and differ little from monarchical, or dictatorial decrees.
The National Defense Resources Preparedness Executive Order opens, as all do, with a statement of authority that one must scrutinize to determine if the President is making new law or carrying out a specific, recent, congressional request. “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:” is designed to sound official. If the reader cannot specifically go to the source of authority and read it, then the general statement is but window dressing. Phrases “as President by the Constitution” or, “as Commander in Chief of the Armed Forces” establish no specific authority. The Constitution gives no authority for such an edict. One, recently cited, law by Congress specifically requesting the President to do something is definitely needed to make this executive order valid and the best the President was able to do was go back sixty-two years and make up stuff to go with the 1950 law as Bill Clinton did in 1994.
Except for the few executive orders which require a statement of implementation by the president, all other types of executive orders are unconstitutional and must stop. If they do not, the inevitable will happen—Congress will nullify itself and dictatorial decrees will be the standard.
Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his articles, please visit www.LibertyUnderFire.org.
Barack Obama, Bill Clinton, Constitution, Executive Order 12919, Executive Orders not always constitutional, Executive Orders should not make law, Legislative brance alone to make law, Martial Law Executive Order, National Defense Resources Preparedness