Apr 29, 2012,08:39pm EDT
Obama's Plan To Seize Control Of Our Economy And Our Lives
Jim Powell
Jim PowellContributor
Opinion
I cover economic and political history.
This article is more than 9 years old.
(Image credit: Getty Images via @daylife)
President Obama has made clear that he’s determined to continue pushing his “progressive” agenda, regardless of constitutional limitations on his power. He aims to have his way by issuing more and more executive orders.
The most ominous sign of possible things to come appeared on March 16, 2012, when President Obama signed executive order 13603 about “National Defense Resources Preparedness.”
This 10-page document is a blueprint for a federal takeover of the economy that would dwarf the looming Obamacare takeover of the health insurance business. Specifically, Obama’s plan involves seizing control of:
* “All commodities and products that are capable of being ingested by either human beings or animals”
* “All forms of energy”
* “All forms of civil transportation”
* “All usable water from all sources”
* “Health resources -- drugs, biological products, medical devices, materials, facilities, health supplies, services and equipment”
* Forced labor ( or “induction” as the executive order delicately refers to military conscription)
Moreover, federal officials would “issue regulations to prioritize and allocate resources.”
Each government bureaucracy “shall act as necessary and appropriate.”
To be sure, much of this language has appeared in national security executive orders that previous presidents have issued periodically since the beginning of the Cold War.
But more than previous national security executive orders, Obama’s 13603 seems to describe a potentially totalitarian regime obsessed with control over everything. Obama’s executive order makes no effort to justify the destruction of liberty, no effort to explain how amassing totalitarian control would enable government to deal effectively with cyber sabotage, suicide bombings, chemical warfare, nuclear missiles or other possible threats. It’s quite likely there would be greater difficulty responding to threats, since totalitarian regimes suffer from economic chaos, colossal waste, massive corruption and bureaucratic infighting that are inevitable consequences of extreme centralization. Such problems plagued fascist Italy, Nazi Germany, the Soviet Union, communist China and other regimes. Totalitarian control would probably trigger resistance movements and underground networks like those that developed in Western Europe during the Nazi occupation. Totalitarian control could provoke more political turmoil than there was in the Vietnam War era of the 1960s. There would probably be a serious brain drain as talented people with critical skills escaped to freedom wherever that might be. Canada?
There’s nothing in executive order 13603 about upholding the Constitution or protecting civil liberties.
Obama’s executive order seems to assume that the next war will be like World War II or World War I, where vast armies of unskilled conscripts went at each other. But current trends suggest that future conflicts are more likely to involve smaller numbers of military personnel – highly-trained professionals, perhaps thousands of miles away from a battlefield, who remotely-control drones, pilotless combat helicopters, unmanned ground vehicles, unmanned ships, mobile security robots and related military technologies.
Even if Obama’s 13603 were no different than previous national security executive orders, it’s more worrisome because it was issued by the president who rammed Obamacare and runaway spending bills through Congress, who racked up $5 trillion of debt and surrounded himself with hardcore “progressives” hostile to the private sector and America as we have known it.
In what circumstances, one might ask, would a president try to carry out this audacious plan?
Executive order 13603 says with ominous ambiguity: during “the full spectrum of emergencies.”
Well, the United States is already in a state of national emergency declared by President George W. Bush on September 14, 2001 and extended last year by President Obama.
To better understand the potentially explosive impact of his plan, let’s take a tour through the dark world of executive orders, a type of presidential power that most people know little, if anything, about.
Many presidents have pushed to expand their power beyond constitutional limits, particularly during crises. Issuing executive orders is the easiest way to do it. A president doesn’t have to propose an executive order, debate the issues, endure hearings or solicit votes. An executive order can be issued in a few minutes -- behind closed doors and away from bright lights.
An executive order may be about all sorts of things large and small.
Paul Begala, who was an advisor to President Bill Clinton, reportedly remarked, “Stroke of the pen, law of the land, kinda cool.”
What about the Constitution? It describes presidential power broadly. There isn’t anything in the Constitution that authorizes an executive order or limits what a president can do with it.
Executive orders arise from “implied constitutional and statutory authority,” the Congressional Research Service reported. “If issued under a valid claim of authority and published in the Federal Register, executive orders may have the force and effect of law.”
The Supreme Court tried to establish some limitations. It asserted the principle that an executive order (1) “must stem either from an act of Congress or from the Constitution itself” and (2) “an executive order must not be “incompatible with the express or implied will of Congress.”
But many executive orders are in a twilight zone of dubious constitutional legitimacy if not open defiance of the Constitution, especially when they amount to lawmaking without congressional approval.
Very few of the thousands of executive orders have ever been challenged legally.
Members of Congress don’t always seem to know much about them. At one point, for example, they were shocked to discover that there were executive orders providing the president with enormous standby powers that could be implemented on a moment’s notice.
Sometimes a president issued executive orders to bypass Congress when his party didn’t control it. But Franklin Delano Roosevelt issued more executive orders than any other president, starting in his early years when he was most popular. Often executive orders seemed to have been issued because a president was in a hurry – and often there were unfortunate consequences. An executive order isn’t a reliable cure for any serious problem.
Executive orders go back to the beginning of our country, although they weren’t called that. Usually they were referred to as proclamations.
Until the early 20th century, executive orders were generally undocumented. They were addressed to a particular government agency which had the only copy. Nobody seemed to know how many executive orders there were. As late as the 1930s, there was an account, published in the New York Times, claiming that “there are no readily available means of ascertaining the true texts and history of the thousand or more executive orders issued since March 4, 1933.”
In 1907, the State Department began compiling and numbering executive orders going back to one that Abraham Lincoln issued on October 20, 1862. That became known as executive order 1. As I write, the most recent is Obama’s executive order 13603.
President George Washington’s first proclamation was on October 3, 1789. He said, “Both Houses of Congress have by their joint Committee requested me to recommend to the People of the United States a day of public thanksgiving.” So, this was authorized by Congress.
Washington’s Neutrality Proclamation wasn’t authorized by Congress. Issued on April 22, 1793, it declared that the United States would be neutral in the war between France and Great Britain, which had begun two months before. Members of Washington’s cabinet, including Secretary of State Thomas Jefferson, agreed that the United States was too fragile to become involved in another war.
Abraham Lincoln expanded presidential powers via proclamations and executive orders. He did this in the name of suppressing rebellion rather than waging war, since the Constitution gave Congress the power to declare war.
Lincoln famously suspended habeas corpus, the legal action that requires a prisoner to be set free if authorities don’t file charges promptly and proceed to a jury trial, so the accused can have an opportunity to prove innocence.
In April 1861, a Maryland militia officer named John Merryman was arrested and detained at Fort McHenry in Baltimore. He was said to have damaged Union facilities and trained Confederate soldiers. His lawyer obtained a writ of habeas corpus from Chief Justice Roger B. Tawney who directed George Cadwalader, the commander at Fort McHenry, to produce Merryman and explain the facts and the legal basis for detention. Cadwalader refused, saying that Lincoln had suspended habeas corpus. Tawney cited him for contempt, but a marshal couldn’t enter the fort to deliver the contempt citation. Tawney wrote what became known as the Ex Parte Merryman opinion, saying, in part, that “If the authority which the Constitution has confided to the judiciary department may upon any pretext be usurped by the military power, the people of the United States are no longer living under a government of laws.”
Lincoln went to Congress, offered an uncertain defense of his action and expressed the hope that Congress would “ratify” his action. Pulitzer Prize winning historian Mark E. Neely, Jr. noted that “the president seemed to agree that the legislative branch was the proper body to suspend the writ of habeas corpus.” On September 24, 1862, Lincoln issued a proclamation officially suspending habeas corpus, which meant that the government could detain people indefinitely. Lincoln “managed the home front, in part,” Neely wrote, “by means of military arrests of civilians – thousands and thousands of them.”
Lincoln had issued executive orders expanding the amount of Union territory subject to military control, particularly southern Illinois, Indiana and Ohio where “copperheads” were operating. In 1864, the Union army arrested Lambdin Milligan and four others in southern Indiana. They were charged with plotting to free Confederate prisoners-of-war. A military court sentenced the men to death, but they appealed for their constitutional right to habeas corpus. After the Civil War, in 1866, the Supreme Court noted that Indiana wasn’t under attack, and civilian courts were functioning, so Milligan and the others were entitled to a jury trial there. Justice David Davis wrote: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of protection all classes of men, at all times, in all circumstances.”
Historian James G. Randall reflected, “No president has carried the power of presidential edict and executive order – independently of Congress – so far as [Lincoln] did. It would not be easy to state what Lincoln conceived to be the limit of his powers.”
Lincoln’s best-known executive order was the Emancipation Proclamation. He hoped to provoke a slave revolt in the Confederacy and make it easier for the Union to win the Civil War. Accordingly, on September 22, 1862, he issued a preliminary Emancipation Proclamation. It applied to any state that didn’t return to the Union by January 1, 1863. No states returned. At that point, Lincoln issued the historic Emancipation Proclamation. It applied to slaves in the Confederacy – territory that the Union didn’t control. It neither abolished slavery nor extended citizenship to former slaves, but it did make the abolition of slavery a war aim.
The peacetime expansion of federal power began with Theodore Roosevelt who issued 1,006 executive orders, more than any previous president. They performed a wide range of administrative functions, especially the disposition of government-owned land.
TR emphatically rejected the view that “what was necessary for the nation could not be done by the President unless he could find some specific authorization to do it…it was not only [the president’s] right but his duty to do anything that the needs of the nation demanded unless such action was forbidden by the Constitution or by the laws.”
TR also said: “I think [the presidency] should be a very powerful office, and I think the President should be a very strong man who uses without hesitation every power the position yields.” He continued, “I believe in a strong executive. I believe in power.”
According to biographer Henry Pringle, “It seldom occurred to Roosevelt that the duty of the executive was to carry out the mandates of the legislative. In so far as he was able, he reversed the theory. Congress, he felt, must obey the president.” He wanted the Supreme Court to obey him, too. Roosevelt acknowledged, “I did greatly broaden the use of executive power.”
At times, TR seemed drunk with power, as when he remarked: “I don’t think that any harm comes from the concentration of power in one man’s hands.”
Woodrow Wilson issued 1,791 executive orders. For instance, executive order 1810 (August 7, 1913) prohibited anyone from operating a flying machine or balloon across the Panama Canal Zone. Wilson issued executive order 1860 (November 11, 1913) to dictate interest rates for the Canal Zone – a surprising number of Wilson’s executive orders had to do with administering that little territory.
Most of Wilson’s executive orders were issued during World War I. For instance, on April 14, 1917, he issued executive order 2594 to establish the Committee on Public Information – war propaganda. On April 28th, he issued executive order 2604 for censorship of messages sent via the trans-Atlantic cables. Executive order 2679-A (August 10, 1917) established the Food Administration. Executive order 2697 (September 7, 1917) required that anyone wishing to export coins, bullion or currency must file an application in triplicate with the nearest Federal Reserve bank. Executive order 2736 (October 23, 1917) authorized Food Administrator Herbert Hoover to requisition food. Executive order 2953 (September 12, 1918) authorized the sale of property seized in accordance with the Trading with the Enemy Act.
Franklin D. Roosevelt issued 3,723 executive orders. In his Inaugural Address, he said: “I shall ask the Congress for the one remaining instrument to meet the [depression] crisis – broad executive power to wage a war against the emergency, as great as the power that would be given me if we were in fact invaded by a foreign foe.”
On March 6, 1933, FDR issued Proclamation 2029 that cited Wilson’s Trading with the Enemy Act to justify ordering banks closed for a National Bank Holiday.
FDR sent his Emergency Banking bill to the House of Representatives, and it was passed after only 38 minutes of debate – apparently without members reading it.
In 1933, FDR issued executive order 6102 that made it illegal for Americans to own gold bullion or gold certificates, even though historically gold provided the best protection against inflation and monetary crises. Violators faced the prospect of a fine up to $10,000 or up to 10 years in prison.
Since economic fascism was popular during the early 1930s, FDR issued executive orders to suspend antitrust laws and establish German-style cartels in dozens of industries, restricting total industry output, allocating market shares and fixing above‑market wages and prices. Above‑market wages discouraged employers from hiring, and above-market prices discouraged consumers from buying. Among these executive orders:
* 6204-A, for the rayon weaving industry
* 6205-C, for the silk manufacturing industry
* 6216, for the ship building and ship repairing industries
* 6242-B, for electrical manufacturing
* 6248, for the corset and brassiere industries
* 6250, for theaters
* 6253, for the fishing tackle industry
* 6254, for the iron and steel industries
* 6255, was for the forest products industry
* 6256, was for the petroleum industry
* 6543-A, for the drapery and upholstery industries
With executive orders, FDR multiplied the number of government bureaucracies. He established the Civilian Conservation Corps by issuing executive order 6101. The Public Works Administration followed with executive order 6174. Then came these executive orders:
* 6225, the Central Statistical Board
* 6340, the Commodity Credit Corporation
* 6420-B, the Civil Works Administration
* 6433-A, the National Emergency Council
* 6470, the Public Works Emergency Housing Corporation
* 6474, the Federal Alcohol Control Administration
* 6514, the Electric Home and Farm Authority
* 6581, the Export-Import Bank of Washington
* 6623, the Federal Employment Stabilization Office
* 6632, the National Recovery Review Board
* 6770, the Industrial Emergency Committee
* 6777, the National Resources Board
* 7027, the Resettlement Administration
* 7034, the Works Progress Administration
As one reflects on FDR’s New Deal executive orders, one thing seems clear: while some of the programs provided relief for desperate people, they failed to achieve a sustained revival of private sector job creation. Indeed, relief spending was the main reason government spending doubled and taxes tripled during the New Deal era (1933-1940). Where did the tax revenue come from? The biggest source of federal revenue was the federal excise tax on cigarettes, beer, soda, chewing gum and other cheap pleasures consumed disproportionately by poor and middle income people. This means the cost of relief programs for poor and middle income people was borne mainly by poor and middle income people. In May 1939, FDR’s Secretary of the Treasury Henry Morgenthau lamented, “We are spending more than we have ever spent before, and it does not work. After eight years of this administration, we have just as much unemployment as when he started.”
New Deal unemployment averaged 17 percent, and it didn’t go down significantly until the government began removing more than 10 million men from the civilian work force via military conscription for World War II.
In 1974, the Senate Committee on National Emergencies and Delegated Emergency Powers revealed that “Since March 9, 1933, the United States has been in a state of declared national emergency. There are now in effect four presidentially-proclaimed states of national emergency. In addition to the national emergency declared by President Roosevelt [during the Great Depression], there are also the national emergency proclaimed by President Truman on December 16, 1950, during the Korean conflict, and the states of national emergency declared by President Nixon on March 23, 1970 and August 15, 1971.
“These proclamations give force to 470 provisions of Federal law, delegating to the President extraordinary powers, ordinarily exercised by the Congress, which effect the lives of American citizens in a host of all-encompassing manners…The President may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and in a plethora of particular ways, control the lives of all Americans.”
As a result of these revelations, in 1976 Congress passed the National Emergencies Act. It limited a president’s declared emergency to two years, which may be extended.
A comment about two of Nixon’s major executive orders.
On August 15, 1971, he announced his New Economic Policy, which happened to be what Bolshevik firebrand Vladimir Lenin called one of his misadventures. Nixon issued executive order 11615 that declared: “to stabilize the economy, reduce inflation, and minimize unemployment, it is necessary to stabilize prices, rents, wages, and salaries.” These controls failed to stop inflation which hit double-digits during the 1970s, and they caused chronic shortages, rationing and business disruption – making it harder to create private sector jobs. By maintaining below-market prices, controls simultaneously encouraged producers to provide less, while encouraging consumers to demand more. Hence, the shortages.
Although this experience with price controls had been a flop, Nixon decided to try again. On June 13, 1973, he signed executive order 11723 that called for a freeze on prices, while he continued to control wages, salaries and rents.
Nixon’s executive orders made a bad situation worse. For instance, his price control administrator C. Jackson Grayson confessed: “lumber controls were beginning to lead to artificial middlemen, black markets and sawmill shutdowns. Companies trapped with low base‑period profit margins were beginning to consider selling out those with higher base periods, sending their capital overseas, or reducing their efforts. Instances of false job upgrading – which were actually ‘raises’ in disguise – were reported. To keep away from profit-margin controls, companies were considering dropping products where costs, and thus prices, had increased. And shortages of certain products (like molasses and fertilizer) were appearing because artificially suppressed domestic prices had allowed higher world prices to pull domestic supplies abroad.”
In 1999, Bill Clinton waged war with executive orders. He issued executive order 13088 that declared the governments of the Federal Republic of Yugoslavia (Serbia and Montenegro) and the Republic of Serbia posed “an extraordinary threat to the national security and foreign policy of the United States.” Therefore, Clinton proclaimed a “national emergency.” He ordered the seizure of property belonging to the named governments in the United States, and he prohibited Americans from conducting commercial transactions with those governments. Clinton’s executive order 13119 declared that the region was a war zone. Executive order 13120 summoned military reserve units for active duty.
None of this was authorized by Congress. On the contrary, Congress voted down a resolution to declare war. Congress wouldn’t “authorize” the air war. Clinton ignored Congress and kept America in the war. When, on June 10, 1999, NATO announced it was over, Clinton ordered American soldiers to serve in the Kosovo Force. There are still some American soldiers in harm’s way.
Once again, we find ourselves in an open-ended national emergency, declared on September 14, 2001 and extended since then. President Obama notified Congress that he was extending it again. This means the president has still has standby powers from hundreds of statutes.
Okay, how can an executive order be revoked?
First, an executive order can be revoked by another executive order. Probably all presidents revoke some executive orders by their predecessors.
For example, Bill Clinton’s executive order 12919, issued on June 3, 1994, was about national security. It revoked all or part of more than a dozen executive orders issued between 1939 and 1991.
President Obama revoked executive orders 13258 (2002) and 13422 (2007), both of which were issued by George W. Bush and amended executive order 12866 (1993) which had been issued by Bill Clinton. These executive orders had to do with regulatory processes.
While executive orders seem irresistible to presidents because they can be issued quickly, they can be revoked quickly, too.
Second, an executive order can be revoked by legislation. A 1999 congressional hearing on executive orders, before the House Rules Committee, the Subcommittee on Legislative and Budget Process, indicated that every president since Grover Cleveland has had some of his executive orders modified or revoked by legislation.
The Congressional Research Service cited a number of recent examples: “in 2006, Congress revoked part of an executive order from November 12, 1838, which reserved certain public land for lighthouse purposes. Congress has also explicitly revoked executive orders in their entirety, such as the Energy Policy Act of 2005, which revoked a December 13, 1912 executive order that created Naval Petroleum Reserve Number 2.” A executive order by President George H.W. Bush, to establish a human fetal tissue bank for research purposes, was revoked when Congress declared that ‘the provisions of Executive Order 12806 shall not have any legal effect.’”
In addition, Congress has denied funding needed to implement various executive orders.
If a president’s adversaries have a veto-proof majority in Congress, the threat of passing a law can deter a president from issuing a controversial executive order. For instance, Christopher J. Deering and Forrest Maltzman, at Washington University, pointed out: “In 1993 President Clinton swiftly backed away from an executive order prohibiting the military from excluding gays from service once it became clear that Congress was likely to overturn such an order by legislative action.”
In recent decades, however, Congress has acquiesced to the expansion of arbitrary presidential power. For example, Congress hasn’t used its power to declare war since the Japanese bombed Pearl Harbor more than seven decades ago, although the United States has been drawn into a number of wars during this period.
Congress adopted the War Powers Resolution (1973) in the aftermath of the undeclared Vietnam War. The law required that the president obtain Congressional authorization before entering a war and that he keep Congress informed about what was going on. Presidents have continued to enter undeclared, unauthorized wars.
Third, an executive order can be revoked by a federal appeals court or the Supreme Court.
However, courts as well as Congress commonly have acquiesced to expanded presidential power.
For instance, during World War II, FDR issued executive order 9102 (1942) that established the War Relocation Authority to forcibly move Japanese-Americans away from the Pacific Coast into “relocation camps” for the duration of World War II. This was upheld by the Supreme Court, 6-3, in Korematsu v. United States, 323 U.S. 214 (1944). Justice Hugo Black wrote the majority opinion. He asserted that protecting against potential Japanese espionage was more important than protecting Fred Korematsu’s individual rights.
In recent times, too, the Supreme Court generally has deferred to the president in cases involving executive orders. In 1979, Iranian revolutionaries seized 52 Americans working at the U.S. Embassy in Teheran and held them as hostages for more than a year. President Jimmy Carter issued an executive order that declared a national emergency and blocked Iranian assets in the U.S. Dames & Moore, a U.S. contractor owed more than $3 million for work performed in Iran, filed a lawsuit seeking payment. After Ronald Reagan was sworn in as president, he entered into an executive agreement with Iran, bypassing the Senate which had the constitutional power to ratify treaties. The executive agreement provided that hostages would be released if legal proceedings in U.S. courts against Iran were suspended. On February 24, 1981, Reagan signed executive order 12294 to suspend such legal proceedings.
Dames & Moore filed another lawsuit claiming that the president lacked the power to do that. In Dames & Moore v. Regan, 453 U.S. 654 (1981), the Supreme Court implicitly upheld the president’s authority to negotiate executive agreements and explicitly affirmed his power to issue an executive order that suspended court proceedings. Chief Justice William Rehnquist cited statutes “indicating congressional acceptance of a broad scope for executive action in circumstances such as those presented in this case…we can conclude that Congress acquiesced in the President’s action… [Since] Congress has acquiesced in the President's action, it cannot be said that the President lacks the power to settle such claims.”
There seem to have been only two cases of an executive order being overturned by a court.
This happened with Harry Truman’s 1952 executive order 10340 that ordered the Secretary of Commerce to stop a steelworkers strike by seizing privately-owned steel mills. Truman insisted that a prolonged strike would impair the government’s ability to fight an undeclared “police action” as the Korean War has been called.
The steel mill seizures were contested in Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952).
The U.S. Solicitor General claimed that Article II, Section 2 of the Constitution “constitutes a grant of all the executive powers of which the Government is capable.”
Supreme Court Justice Robert Jackson was incredulous. He said, “The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by King George III. The description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image. Continental European examples were no more appealing. And, if we seek instruction from our own times, we can match it only from the executive powers in those governments we disparagingly describe as totalitarian. I cannot accept the view that the clause is a grant in bulk of all conceivable executive power.”
In a 6-3 decision, the Supreme Court rejected every argument made on behalf of Truman’s seizure: “The Executive Order was not authorized by the Constitution or laws of the United States, and it cannot stand…There is no statute which expressly or impliedly authorizes the President to take possession of this property as he did here… In its consideration of the Taft‑Hartley Act in 1947, Congress refused to authorize governmental seizures of property as a method of preventing work stoppages and settling labor disputes… Authority of the President to issue such an order in the circumstances of this case cannot be implied from the aggregate of his powers under Article II of the Constitution…The Order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces…Nor can the Order be sustained because of the several provisions of Article II which grant executive power to the President… The power here sought to be exercised is the lawmaking power, which the Constitution vests in the Congress alone, in both good and bad times…the President’s power to see that laws are faithfully executed refutes the idea that he is to be a lawmaker.”
President Clinton’s 12954 was the other case of an executive order known to have been revoked by a court. Clinton banned the federal government from hiring contractors who replaced strikers. He argued that strikers can become violent when they’re replaced, so it would be better to appease strikers and support union workplace monopolies by banning replacements. Attorney Charles T. Kimmett, writing in the Yale Law Journal, defended the president’s position while acknowledging union violence. “When striking Greyhound workers were permanently replaced,” he wrote, “replacement bus drivers and bus riders became targets of sniper fire. Similarly, the Hormel Company’s decision to hire permanent striker replacements was accompanied by such violence that Minnesota’s governor called in the National Guard.”
The U.S. Court of Appeals for the D.C. Circuit revoked Clinton’s executive order in Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir. 1996). This was an important case, because during the past seven decades, there have been more than a hundred executive orders regulating private employment, and legal challenges have been rare.
Clinton’s executive order 12954 conflicted with a 7-0 U.S. Supreme Court decision in NLRB v. Mackay Radio & Telegraph Company, 304 U.S. 333 (1938),. In part, that court decided “[The employer] is not bound to discharge those hired to fill the places of strikers.”
D.C. Circuit Judge Laurence Silberman said, “We think it untenable to conclude that there are no judicially enforceable limitations on presidential actions [enabling] the President to bypass scores of statutory limitations on governmental authority.”
As all this experience suggests, executive orders make it easy for presidents to consolidate more power and difficult for anyone to stop them. People acquiesce with the hope that a president will do good, but if he or she does harm – remember, there’s no reliable way of keeping bad or incompetent people out of power – then Americans will find themselves in a very bad place.
Hopefully, President Obama will never try to implement his executive order 13603 – the plan for seizing control of our economy and our lives. But the plan is ready-to-go, awaiting the right moment. One morning, Americans could wake up to the news that suddenly Obama is activating the plan because of cyber sabotage, a terrorist incident, a crisis in nuclear Pakistan, a war with Iran or some other state of emergency, perhaps the state of emergency he extended last year. Or perhaps the president might simply decide that to win the fall election he needs an “October surprise.”
Jim Powell, a Senior Fellow at the Cato Institute, is the author of FDR’s Folly, Bully Boy, Wilson’s War, Greatest Emancipations, Gnomes of Tokyo, The Triumph of Liberty and other books.
Apr 29, 2012,08:39pm EDT
Obama's Plan To Seize Control Of Our Economy And Our Lives
Jim Powell
Jim PowellContributor
Opinion
I cover economic and political history.
This article is more than 9 years old.
(Image credit: Getty Images via @daylife)
President Obama has made clear that he’s determined to continue pushing his “progressive” agenda, regardless of constitutional limitations on his power. He aims to have his way by issuing more and more executive orders.
The most ominous sign of possible things to come appeared on March 16, 2012, when President Obama signed executive order 13603 about “National Defense Resources Preparedness.”
This 10-page document is a blueprint for a federal takeover of the economy that would dwarf the looming Obamacare takeover of the health insurance business. Specifically, Obama’s plan involves seizing control of:
* “All commodities and products that are capable of being ingested by either human beings or animals”
* “All forms of energy”
* “All forms of civil transportation”
* “All usable water from all sources”
* “Health resources -- drugs, biological products, medical devices, materials, facilities, health supplies, services and equipment”
* Forced labor ( or “induction” as the executive order delicately refers to military conscription)
Moreover, federal officials would “issue regulations to prioritize and allocate resources.”
Each government bureaucracy “shall act as necessary and appropriate.”
To be sure, much of this language has appeared in national security executive orders that previous presidents have issued periodically since the beginning of the Cold War.
But more than previous national security executive orders, Obama’s 13603 seems to describe a potentially totalitarian regime obsessed with control over everything. Obama’s executive order makes no effort to justify the destruction of liberty, no effort to explain how amassing totalitarian control would enable government to deal effectively with cyber sabotage, suicide bombings, chemical warfare, nuclear missiles or other possible threats. It’s quite likely there would be greater difficulty responding to threats, since totalitarian regimes suffer from economic chaos, colossal waste, massive corruption and bureaucratic infighting that are inevitable consequences of extreme centralization. Such problems plagued fascist Italy, Nazi Germany, the Soviet Union, communist China and other regimes. Totalitarian control would probably trigger resistance movements and underground networks like those that developed in Western Europe during the Nazi occupation. Totalitarian control could provoke more political turmoil than there was in the Vietnam War era of the 1960s. There would probably be a serious brain drain as talented people with critical skills escaped to freedom wherever that might be. Canada?
There’s nothing in executive order 13603 about upholding the Constitution or protecting civil liberties.
Obama’s executive order seems to assume that the next war will be like World War II or World War I, where vast armies of unskilled conscripts went at each other. But current trends suggest that future conflicts are more likely to involve smaller numbers of military personnel – highly-trained professionals, perhaps thousands of miles away from a battlefield, who remotely-control drones, pilotless combat helicopters, unmanned ground vehicles, unmanned ships, mobile security robots and related military technologies.
Even if Obama’s 13603 were no different than previous national security executive orders, it’s more worrisome because it was issued by the president who rammed Obamacare and runaway spending bills through Congress, who racked up $5 trillion of debt and surrounded himself with hardcore “progressives” hostile to the private sector and America as we have known it.
In what circumstances, one might ask, would a president try to carry out this audacious plan?
Executive order 13603 says with ominous ambiguity: during “the full spectrum of emergencies.”
Well, the United States is already in a state of national emergency declared by President George W. Bush on September 14, 2001 and extended last year by President Obama.
To better understand the potentially explosive impact of his plan, let’s take a tour through the dark world of executive orders, a type of presidential power that most people know little, if anything, about.
Many presidents have pushed to expand their power beyond constitutional limits, particularly during crises. Issuing executive orders is the easiest way to do it. A president doesn’t have to propose an executive order, debate the issues, endure hearings or solicit votes. An executive order can be issued in a few minutes -- behind closed doors and away from bright lights.
An executive order may be about all sorts of things large and small.
Paul Begala, who was an advisor to President Bill Clinton, reportedly remarked, “Stroke of the pen, law of the land, kinda cool.”
What about the Constitution? It describes presidential power broadly. There isn’t anything in the Constitution that authorizes an executive order or limits what a president can do with it.
Executive orders arise from “implied constitutional and statutory authority,” the Congressional Research Service reported. “If issued under a valid claim of authority and published in the Federal Register, executive orders may have the force and effect of law.”
The Supreme Court tried to establish some limitations. It asserted the principle that an executive order (1) “must stem either from an act of Congress or from the Constitution itself” and (2) “an executive order must not be “incompatible with the express or implied will of Congress.”
But many executive orders are in a twilight zone of dubious constitutional legitimacy if not open defiance of the Constitution, especially when they amount to lawmaking without congressional approval.
Very few of the thousands of executive orders have ever been challenged legally.
Members of Congress don’t always seem to know much about them. At one point, for example, they were shocked to discover that there were executive orders providing the president with enormous standby powers that could be implemented on a moment’s notice.
Sometimes a president issued executive orders to bypass Congress when his party didn’t control it. But Franklin Delano Roosevelt issued more executive orders than any other president, starting in his early years when he was most popular. Often executive orders seemed to have been issued because a president was in a hurry – and often there were unfortunate consequences. An executive order isn’t a reliable cure for any serious problem.
Executive orders go back to the beginning of our country, although they weren’t called that. Usually they were referred to as proclamations.
Until the early 20th century, executive orders were generally undocumented. They were addressed to a particular government agency which had the only copy. Nobody seemed to know how many executive orders there were. As late as the 1930s, there was an account, published in the New York Times, claiming that “there are no readily available means of ascertaining the true texts and history of the thousand or more executive orders issued since March 4, 1933.”
In 1907, the State Department began compiling and numbering executive orders going back to one that Abraham Lincoln issued on October 20, 1862. That became known as executive order 1. As I write, the most recent is Obama’s executive order 13603.
President George Washington’s first proclamation was on October 3, 1789. He said, “Both Houses of Congress have by their joint Committee requested me to recommend to the People of the United States a day of public thanksgiving.” So, this was authorized by Congress.
Washington’s Neutrality Proclamation wasn’t authorized by Congress. Issued on April 22, 1793, it declared that the United States would be neutral in the war between France and Great Britain, which had begun two months before. Members of Washington’s cabinet, including Secretary of State Thomas Jefferson, agreed that the United States was too fragile to become involved in another war.
Abraham Lincoln expanded presidential powers via proclamations and executive orders. He did this in the name of suppressing rebellion rather than waging war, since the Constitution gave Congress the power to declare war.
Lincoln famously suspended habeas corpus, the legal action that requires a prisoner to be set free if authorities don’t file charges promptly and proceed to a jury trial, so the accused can have an opportunity to prove innocence.
In April 1861, a Maryland militia officer named John Merryman was arrested and detained at Fort McHenry in Baltimore. He was said to have damaged Union facilities and trained Confederate soldiers. His lawyer obtained a writ of habeas corpus from Chief Justice Roger B. Tawney who directed George Cadwalader, the commander at Fort McHenry, to produce Merryman and explain the facts and the legal basis for detention. Cadwalader refused, saying that Lincoln had suspended habeas corpus. Tawney cited him for contempt, but a marshal couldn’t enter the fort to deliver the contempt citation. Tawney wrote what became known as the Ex Parte Merryman opinion, saying, in part, that “If the authority which the Constitution has confided to the judiciary department may upon any pretext be usurped by the military power, the people of the United States are no longer living under a government of laws.”
Lincoln went to Congress, offered an uncertain defense of his action and expressed the hope that Congress would “ratify” his action. Pulitzer Prize winning historian Mark E. Neely, Jr. noted that “the president seemed to agree that the legislative branch was the proper body to suspend the writ of habeas corpus.” On September 24, 1862, Lincoln issued a proclamation officially suspending habeas corpus, which meant that the government could detain people indefinitely. Lincoln “managed the home front, in part,” Neely wrote, “by means of military arrests of civilians – thousands and thousands of them.”
Lincoln had issued executive orders expanding the amount of Union territory subject to military control, particularly southern Illinois, Indiana and Ohio where “copperheads” were operating. In 1864, the Union army arrested Lambdin Milligan and four others in southern Indiana. They were charged with plotting to free Confederate prisoners-of-war. A military court sentenced the men to death, but they appealed for their constitutional right to habeas corpus. After the Civil War, in 1866, the Supreme Court noted that Indiana wasn’t under attack, and civilian courts were functioning, so Milligan and the others were entitled to a jury trial there. Justice David Davis wrote: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of protection all classes of men, at all times, in all circumstances.”
Historian James G. Randall reflected, “No president has carried the power of presidential edict and executive order – independently of Congress – so far as [Lincoln] did. It would not be easy to state what Lincoln conceived to be the limit of his powers.”
Lincoln’s best-known executive order was the Emancipation Proclamation. He hoped to provoke a slave revolt in the Confederacy and make it easier for the Union to win the Civil War. Accordingly, on September 22, 1862, he issued a preliminary Emancipation Proclamation. It applied to any state that didn’t return to the Union by January 1, 1863. No states returned. At that point, Lincoln issued the historic Emancipation Proclamation. It applied to slaves in the Confederacy – territory that the Union didn’t control. It neither abolished slavery nor extended citizenship to former slaves, but it did make the abolition of slavery a war aim.
The peacetime expansion of federal power began with Theodore Roosevelt who issued 1,006 executive orders, more than any previous president. They performed a wide range of administrative functions, especially the disposition of government-owned land.
TR emphatically rejected the view that “what was necessary for the nation could not be done by the President unless he could find some specific authorization to do it…it was not only [the president’s] right but his duty to do anything that the needs of the nation demanded unless such action was forbidden by the Constitution or by the laws.”
TR also said: “I think [the presidency] should be a very powerful office, and I think the President should be a very strong man who uses without hesitation every power the position yields.” He continued, “I believe in a strong executive. I believe in power.”
According to biographer Henry Pringle, “It seldom occurred to Roosevelt that the duty of the executive was to carry out the mandates of the legislative. In so far as he was able, he reversed the theory. Congress, he felt, must obey the president.” He wanted the Supreme Court to obey him, too. Roosevelt acknowledged, “I did greatly broaden the use of executive power.”
At times, TR seemed drunk with power, as when he remarked: “I don’t think that any harm comes from the concentration of power in one man’s hands.”
Woodrow Wilson issued 1,791 executive orders. For instance, executive order 1810 (August 7, 1913) prohibited anyone from operating a flying machine or balloon across the Panama Canal Zone. Wilson issued executive order 1860 (November 11, 1913) to dictate interest rates for the Canal Zone – a surprising number of Wilson’s executive orders had to do with administering that little territory.
Most of Wilson’s executive orders were issued during World War I. For instance, on April 14, 1917, he issued executive order 2594 to establish the Committee on Public Information – war propaganda. On April 28th, he issued executive order 2604 for censorship of messages sent via the trans-Atlantic cables. Executive order 2679-A (August 10, 1917) established the Food Administration. Executive order 2697 (September 7, 1917) required that anyone wishing to export coins, bullion or currency must file an application in triplicate with the nearest Federal Reserve bank. Executive order 2736 (October 23, 1917) authorized Food Administrator Herbert Hoover to requisition food. Executive order 2953 (September 12, 1918) authorized the sale of property seized in accordance with the Trading with the Enemy Act.
Franklin D. Roosevelt issued 3,723 executive orders. In his Inaugural Address, he said: “I shall ask the Congress for the one remaining instrument to meet the [depression] crisis – broad executive power to wage a war against the emergency, as great as the power that would be given me if we were in fact invaded by a foreign foe.”
On March 6, 1933, FDR issued Proclamation 2029 that cited Wilson’s Trading with the Enemy Act to justify ordering banks closed for a National Bank Holiday.
FDR sent his Emergency Banking bill to the House of Representatives, and it was passed after only 38 minutes of debate – apparently without members reading it.
In 1933, FDR issued executive order 6102 that made it illegal for Americans to own gold bullion or gold certificates, even though historically gold provided the best protection against inflation and monetary crises. Violators faced the prospect of a fine up to $10,000 or up to 10 years in prison.
Since economic fascism was popular during the early 1930s, FDR issued executive orders to suspend antitrust laws and establish German-style cartels in dozens of industries, restricting total industry output, allocating market shares and fixing above‑market wages and prices. Above‑market wages discouraged employers from hiring, and above-market prices discouraged consumers from buying. Among these executive orders:
* 6204-A, for the rayon weaving industry
* 6205-C, for the silk manufacturing industry
* 6216, for the ship building and ship repairing industries
* 6242-B, for electrical manufacturing
* 6248, for the corset and brassiere industries
* 6250, for theaters
* 6253, for the fishing tackle industry
* 6254, for the iron and steel industries
* 6255, was for the forest products industry
* 6256, was for the petroleum industry
* 6543-A, for the drapery and upholstery industries
With executive orders, FDR multiplied the number of government bureaucracies. He established the Civilian Conservation Corps by issuing executive order 6101. The Public Works Administration followed with executive order 6174. Then came these executive orders:
* 6225, the Central Statistical Board
* 6340, the Commodity Credit Corporation
* 6420-B, the Civil Works Administration
* 6433-A, the National Emergency Council
* 6470, the Public Works Emergency Housing Corporation
* 6474, the Federal Alcohol Control Administration
* 6514, the Electric Home and Farm Authority
* 6581, the Export-Import Bank of Washington
* 6623, the Federal Employment Stabilization Office
* 6632, the National Recovery Review Board
* 6770, the Industrial Emergency Committee
* 6777, the National Resources Board
* 7027, the Resettlement Administration
* 7034, the Works Progress Administration
As one reflects on FDR’s New Deal executive orders, one thing seems clear: while some of the programs provided relief for desperate people, they failed to achieve a sustained revival of private sector job creation. Indeed, relief spending was the main reason government spending doubled and taxes tripled during the New Deal era (1933-1940). Where did the tax revenue come from? The biggest source of federal revenue was the federal excise tax on cigarettes, beer, soda, chewing gum and other cheap pleasures consumed disproportionately by poor and middle income people. This means the cost of relief programs for poor and middle income people was borne mainly by poor and middle income people. In May 1939, FDR’s Secretary of the Treasury Henry Morgenthau lamented, “We are spending more than we have ever spent before, and it does not work. After eight years of this administration, we have just as much unemployment as when he started.”
New Deal unemployment averaged 17 percent, and it didn’t go down significantly until the government began removing more than 10 million men from the civilian work force via military conscription for World War II.
In 1974, the Senate Committee on National Emergencies and Delegated Emergency Powers revealed that “Since March 9, 1933, the United States has been in a state of declared national emergency. There are now in effect four presidentially-proclaimed states of national emergency. In addition to the national emergency declared by President Roosevelt [during the Great Depression], there are also the national emergency proclaimed by President Truman on December 16, 1950, during the Korean conflict, and the states of national emergency declared by President Nixon on March 23, 1970 and August 15, 1971.
“These proclamations give force to 470 provisions of Federal law, delegating to the President extraordinary powers, ordinarily exercised by the Congress, which effect the lives of American citizens in a host of all-encompassing manners…The President may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and in a plethora of particular ways, control the lives of all Americans.”
As a result of these revelations, in 1976 Congress passed the National Emergencies Act. It limited a president’s declared emergency to two years, which may be extended.
A comment about two of Nixon’s major executive orders.
On August 15, 1971, he announced his New Economic Policy, which happened to be what Bolshevik firebrand Vladimir Lenin called one of his misadventures. Nixon issued executive order 11615 that declared: “to stabilize the economy, reduce inflation, and minimize unemployment, it is necessary to stabilize prices, rents, wages, and salaries.” These controls failed to stop inflation which hit double-digits during the 1970s, and they caused chronic shortages, rationing and business disruption – making it harder to create private sector jobs. By maintaining below-market prices, controls simultaneously encouraged producers to provide less, while encouraging consumers to demand more. Hence, the shortages.
Although this experience with price controls had been a flop, Nixon decided to try again. On June 13, 1973, he signed executive order 11723 that called for a freeze on prices, while he continued to control wages, salaries and rents.
Nixon’s executive orders made a bad situation worse. For instance, his price control administrator C. Jackson Grayson confessed: “lumber controls were beginning to lead to artificial middlemen, black markets and sawmill shutdowns. Companies trapped with low base‑period profit margins were beginning to consider selling out those with higher base periods, sending their capital overseas, or reducing their efforts. Instances of false job upgrading – which were actually ‘raises’ in disguise – were reported. To keep away from profit-margin controls, companies were considering dropping products where costs, and thus prices, had increased. And shortages of certain products (like molasses and fertilizer) were appearing because artificially suppressed domestic prices had allowed higher world prices to pull domestic supplies abroad.”
In 1999, Bill Clinton waged war with executive orders. He issued executive order 13088 that declared the governments of the Federal Republic of Yugoslavia (Serbia and Montenegro) and the Republic of Serbia posed “an extraordinary threat to the national security and foreign policy of the United States.” Therefore, Clinton proclaimed a “national emergency.” He ordered the seizure of property belonging to the named governments in the United States, and he prohibited Americans from conducting commercial transactions with those governments. Clinton’s executive order 13119 declared that the region was a war zone. Executive order 13120 summoned military reserve units for active duty.
None of this was authorized by Congress. On the contrary, Congress voted down a resolution to declare war. Congress wouldn’t “authorize” the air war. Clinton ignored Congress and kept America in the war. When, on June 10, 1999, NATO announced it was over, Clinton ordered American soldiers to serve in the Kosovo Force. There are still some American soldiers in harm’s way.
Once again, we find ourselves in an open-ended national emergency, declared on September 14, 2001 and extended since then. President Obama notified Congress that he was extending it again. This means the president has still has standby powers from hundreds of statutes.
Okay, how can an executive order be revoked?
First, an executive order can be revoked by another executive order. Probably all presidents revoke some executive orders by their predecessors.
For example, Bill Clinton’s executive order 12919, issued on June 3, 1994, was about national security. It revoked all or part of more than a dozen executive orders issued between 1939 and 1991.
President Obama revoked executive orders 13258 (2002) and 13422 (2007), both of which were issued by George W. Bush and amended executive order 12866 (1993) which had been issued by Bill Clinton. These executive orders had to do with regulatory processes.
While executive orders seem irresistible to presidents because they can be issued quickly, they can be revoked quickly, too.
Second, an executive order can be revoked by legislation. A 1999 congressional hearing on executive orders, before the House Rules Committee, the Subcommittee on Legislative and Budget Process, indicated that every president since Grover Cleveland has had some of his executive orders modified or revoked by legislation.
The Congressional Research Service cited a number of recent examples: “in 2006, Congress revoked part of an executive order from November 12, 1838, which reserved certain public land for lighthouse purposes. Congress has also explicitly revoked executive orders in their entirety, such as the Energy Policy Act of 2005, which revoked a December 13, 1912 executive order that created Naval Petroleum Reserve Number 2.” A executive order by President George H.W. Bush, to establish a human fetal tissue bank for research purposes, was revoked when Congress declared that ‘the provisions of Executive Order 12806 shall not have any legal effect.’”
In addition, Congress has denied funding needed to implement various executive orders.
If a president’s adversaries have a veto-proof majority in Congress, the threat of passing a law can deter a president from issuing a controversial executive order. For instance, Christopher J. Deering and Forrest Maltzman, at Washington University, pointed out: “In 1993 President Clinton swiftly backed away from an executive order prohibiting the military from excluding gays from service once it became clear that Congress was likely to overturn such an order by legislative action.”
In recent decades, however, Congress has acquiesced to the expansion of arbitrary presidential power. For example, Congress hasn’t used its power to declare war since the Japanese bombed Pearl Harbor more than seven decades ago, although the United States has been drawn into a number of wars during this period.
Congress adopted the War Powers Resolution (1973) in the aftermath of the undeclared Vietnam War. The law required that the president obtain Congressional authorization before entering a war and that he keep Congress informed about what was going on. Presidents have continued to enter undeclared, unauthorized wars.
Third, an executive order can be revoked by a federal appeals court or the Supreme Court.
However, courts as well as Congress commonly have acquiesced to expanded presidential power.
For instance, during World War II, FDR issued executive order 9102 (1942) that established the War Relocation Authority to forcibly move Japanese-Americans away from the Pacific Coast into “relocation camps” for the duration of World War II. This was upheld by the Supreme Court, 6-3, in Korematsu v. United States, 323 U.S. 214 (1944). Justice Hugo Black wrote the majority opinion. He asserted that protecting against potential Japanese espionage was more important than protecting Fred Korematsu’s individual rights.
In recent times, too, the Supreme Court generally has deferred to the president in cases involving executive orders. In 1979, Iranian revolutionaries seized 52 Americans working at the U.S. Embassy in Teheran and held them as hostages for more than a year. President Jimmy Carter issued an executive order that declared a national emergency and blocked Iranian assets in the U.S. Dames & Moore, a U.S. contractor owed more than $3 million for work performed in Iran, filed a lawsuit seeking payment. After Ronald Reagan was sworn in as president, he entered into an executive agreement with Iran, bypassing the Senate which had the constitutional power to ratify treaties. The executive agreement provided that hostages would be released if legal proceedings in U.S. courts against Iran were suspended. On February 24, 1981, Reagan signed executive order 12294 to suspend such legal proceedings.
Dames & Moore filed another lawsuit claiming that the president lacked the power to do that. In Dames & Moore v. Regan, 453 U.S. 654 (1981), the Supreme Court implicitly upheld the president’s authority to negotiate executive agreements and explicitly affirmed his power to issue an executive order that suspended court proceedings. Chief Justice William Rehnquist cited statutes “indicating congressional acceptance of a broad scope for executive action in circumstances such as those presented in this case…we can conclude that Congress acquiesced in the President’s action… [Since] Congress has acquiesced in the President's action, it cannot be said that the President lacks the power to settle such claims.”
There seem to have been only two cases of an executive order being overturned by a court.
This happened with Harry Truman’s 1952 executive order 10340 that ordered the Secretary of Commerce to stop a steelworkers strike by seizing privately-owned steel mills. Truman insisted that a prolonged strike would impair the government’s ability to fight an undeclared “police action” as the Korean War has been called.
The steel mill seizures were contested in Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952).
The U.S. Solicitor General claimed that Article II, Section 2 of the Constitution “constitutes a grant of all the executive powers of which the Government is capable.”
Supreme Court Justice Robert Jackson was incredulous. He said, “The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by King George III. The description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image. Continental European examples were no more appealing. And, if we seek instruction from our own times, we can match it only from the executive powers in those governments we disparagingly describe as totalitarian. I cannot accept the view that the clause is a grant in bulk of all conceivable executive power.”
In a 6-3 decision, the Supreme Court rejected every argument made on behalf of Truman’s seizure: “The Executive Order was not authorized by the Constitution or laws of the United States, and it cannot stand…There is no statute which expressly or impliedly authorizes the President to take possession of this property as he did here… In its consideration of the Taft‑Hartley Act in 1947, Congress refused to authorize governmental seizures of property as a method of preventing work stoppages and settling labor disputes… Authority of the President to issue such an order in the circumstances of this case cannot be implied from the aggregate of his powers under Article II of the Constitution…The Order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces…Nor can the Order be sustained because of the several provisions of Article II which grant executive power to the President… The power here sought to be exercised is the lawmaking power, which the Constitution vests in the Congress alone, in both good and bad times…the President’s power to see that laws are faithfully executed refutes the idea that he is to be a lawmaker.”
President Clinton’s 12954 was the other case of an executive order known to have been revoked by a court. Clinton banned the federal government from hiring contractors who replaced strikers. He argued that strikers can become violent when they’re replaced, so it would be better to appease strikers and support union workplace monopolies by banning replacements. Attorney Charles T. Kimmett, writing in the Yale Law Journal, defended the president’s position while acknowledging union violence. “When striking Greyhound workers were permanently replaced,” he wrote, “replacement bus drivers and bus riders became targets of sniper fire. Similarly, the Hormel Company’s decision to hire permanent striker replacements was accompanied by such violence that Minnesota’s governor called in the National Guard.”
The U.S. Court of Appeals for the D.C. Circuit revoked Clinton’s executive order in Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir. 1996). This was an important case, because during the past seven decades, there have been more than a hundred executive orders regulating private employment, and legal challenges have been rare.
Clinton’s executive order 12954 conflicted with a 7-0 U.S. Supreme Court decision in NLRB v. Mackay Radio & Telegraph Company, 304 U.S. 333 (1938),. In part, that court decided “[The employer] is not bound to discharge those hired to fill the places of strikers.”
D.C. Circuit Judge Laurence Silberman said, “We think it untenable to conclude that there are no judicially enforceable limitations on presidential actions [enabling] the President to bypass scores of statutory limitations on governmental authority.”
As all this experience suggests, executive orders make it easy for presidents to consolidate more power and difficult for anyone to stop them. People acquiesce with the hope that a president will do good, but if he or she does harm – remember, there’s no reliable way of keeping bad or incompetent people out of power – then Americans will find themselves in a very bad place.
Hopefully, President Obama will never try to implement his executive order 13603 – the plan for seizing control of our economy and our lives. But the plan is ready-to-go, awaiting the right moment. One morning, Americans could wake up to the news that suddenly Obama is activating the plan because of cyber sabotage, a terrorist incident, a crisis in nuclear Pakistan, a war with Iran or some other state of emergency, perhaps the state of emergency he extended last year. Or perhaps the president might simply decide that to win the fall election he needs an “October surprise.”
Jim Powell, a Senior Fellow at the Cato Institute, is the author of FDR’s Folly, Bully Boy, Wilson’s War, Greatest Emancipations, Gnomes of Tokyo, The Triumph of Liberty and other books.
Arabic
French
Spanish
Portuguese
Deutsch
Turkish
Dutch
Italiano
Russian
Romaian
Portuguese (Brazil)
Greek