Executive Orders – A Threat to Liberty?

What is an executive order?

There is no express constitutional provision for executive orders (EOs).  The power to issue executive orders or proclamations is implied by the first sentence of Article 2, Section 1, "The executive Power shall be vested in a President of the United States of America."  Former US Attorney General Michael Mukasey recently stated:

Not "some" or "most" or even "all but a teeny-weeny bit" of the executive power. The President is vested with all of it.  This is particularly noteworthy when compared with the enumerated legislative powers vested in Congress:  "All legislative Powers herein granted."  The Founders understood, based in part on their unfortunate experience under the Articles of Confederation, that the branch of government most likely to be in need of the ability to act quickly and decisively is the executive."[1]

The limit of executive orders/proclamations (there is no practical difference, so we'll call both EOs for now) is another matter.  The most common description was issued by the House of Representatives in 1957:

Executive orders and proclamations are directives or actions by the President.  When they are founded on the authority of the President derived from the Constitution or statute, they may have the force and effect of law . . . Executive orders are generally directed to, and govern actions by, Government officials and agencies.  They usually affect private individuals only indirectly.  Proclamations in most instances affect primarily the activities of private individuals.  Since the President has no power or authority over individual citizens and their rights . . . [t]he President's proclamations are not legally binding . . . The difference between Executive orders and proclamations is more one of form than of substance . . .[2]

So, sometimes they have the force of law and sometimes they don't?  My, that's confusing.

Okay, as orders to the executive branch or other government officials/employees, I have no problem with EOs – the president can issue orders just as any chief executive can issue orders to his employees.

It's much harder for me to see that a president can write laws or that the Constitution grants him power that allows him to write laws.

That isn't actually the focus of this post, that's the preface. My point in this preface is:

EOs exist, and we have to deal with them.

Many actually are innocuous; a few are very worthy of our attention. For example, Flag Day is not an official federal holiday; Title 36 of the United States Code states that the President has the discretion to officially proclaim the observance.  It's part of the way we honor the flag that we formally renew the celebration every single year.  This is a good thing.

What kinds of problems to EOs cause?

Some EOs are not harmless:  Have you heard of the Grand Staircase-Escalante National Monument?  In 1906, Congress passed the Antiquities Act (16 USC 431-433), authorizing the President to restrict the use of particular public land owned by the federal government via an EO.  Bill Clinton used the authority of Antiquities Act (itself questionable constitutionally) to create the Grand Staircase-Escalante National Monument in September 1996 – the height of his re-election campaign.  A ceremony was held at Grand Canyon National Park in Arizona.  The Governor of Utah and Utah's members of Congress were told about the action the day before the ceremony.  Many believe this was a political ploy by Clinton to win votes in Arizona.  If true, it worked.  Clinton won Arizona's 8 electoral votes by 2.2% (he never had any chance to win in Utah).

The Monument is a popular tourist venue and it makes money – both for the State and for the local communities – and the feds paid Utah $13 million for Utah-owned land within the Monument.  However, it is almost 3,000 square miles in area and contains a large part of the estimated $1 trillion dollars of natural resources that are locked away under federal lands in Utah designated as wilderness.  Money and jobs have been denied to Utah by the action of one person – the president – and natural resources have been denied to every American by the action of one person – the president.

Worse than the activity is the principle behind it – land within the State of Utah was taken by the federal government without the permission of (or even the courtesy of notification to) the State of Utah, and in clear violation of the 5th Article of Amendment to the Constitution.

It gets still worse:

Also issued by Pres. Clinton on June 3, 1994, Executive Order 12919 states:

"The United States must have an industrial and technology base capable of meeting national defense requirements, and capable of contributing to the technological superiority of its defense equipment in peacetime and in times of national emergency.  The domestic industrial and technological base is the foundation for national defense preparedness.  The authorities provided in the [Defense Production Act of 1950] shall be used to strengthen this base and to ensure it is capable of responding to all threats to the national security of the United States."

We are all for national defense, right?  Well, not so fast.  This isn't the only EO on the subject.[3]

EO 10995:  "In carrying out functions under this order, the Director of Telecommunications Management shall consider the following objectives: (a) Full and efficient employment of telecommunications resources in carrying out national policies . . . (c) Utilization of the radio spectrum by the Federal Government in a manner which permits and encourages the most beneficial use thereof in the public interest . . . "  That sounds like a federal takeover of the US telecommunications industry – television, radio, maybe even the Internet?
 

EO 10997:    "With respect to the resources defined above [coal, natural gas, oil, etc.], the Secretary shall . . . Prepare plans to claim materials, manpower, equipment, supplies and services needed in support of assigned responsibilities and other essential functions of the Department before the appropriate agency . . ."  That sounds like a federal takeover of the US energy industry.

EO 10998:  "With respect to food resources, food resource facilities, farm equipment, and fertilizer the Secretary shall . . . Develop priorities, allocations and distribution control systems and related plans to insure that available food resources are properly apportioned among and distributed to civilian, military and foreign claimants in an emergency and develop priorities, allocations and distribution control systems and related plans for the domestic distribution of farm equipment and fertilizer." That sounds like a federal takeover of the US agriculture industry and our food supply.

EO 10999:  "The Secretary shall develop long range programs designed to integrate the mobilization [a military term] requirements for movement of all forms of commerce with all forms of national and international transportation systems including air, ground, water, and pipelines, in an emergency . . ." That sounds like a federal takeover of the US transportation industry.

EO 11000:  "The Secretary shall . . . Develop plans and issue guidance designed to utilize to the maximum extent civilian manpower resources . . . Such plans shall include, but not necessarily be limited to . . . Procedures for translating survival and production urgencies into manpower priorities to be used as guides for allocating available workers . . . Technical guidance to States for the utilization of the nationwide system of public employment offices . . . for screening, recruiting, and referring workers, and for other appropriate activities to meet mobilization and civil defense needs in each community . . . Programs for more effective utilization of limited manpower resources, and in cooperation with other appropriate agencies, programs for recruitment, training, allocation, and utilization of persons possessing specialized competence or aptitude in acquiring such competence."  That sounds like a federal plan to conscript US civilian citizens for any job the federal government deems essential to natural security.

EO 11001:  "With respect to emergency health services . . . the Secretary shall . . . Develop plans and issue guidance designed to utilize to the maximum extent the existing civilian health resources of the Federal Government, and with their active participation, assistance, and consent, the health resources of the States and local political subdivisions thereof, and of other civilian organizations and agencies concerned with the health of the population, under all conditions of national emergency. Maintain relations with health professions and institutions to foster mutual understanding of Federal emergency plans which affect health activities."  That sounds like a federal takeover of the US healthcare industry, although it does specifically mention "their active participation, assistance, and consent," I have to wonder, in light of things like Obamacare and the other EOs, if the feds would actually ask for such consent.

EO 11003:  "The Administrator shall . . . Formulate plans for the development, utilization, expansion and emergency management of the Nation's civil airports, civil aviation ground facilities and equipment required for essential civil air operations, except manufacturing facilities, but including the development of orders for insuring the continued operation of essential civil airports, civil aviation operating facilities, and civil aviation. equipment." That sounds like a federal takeover of the US aviation industry.

EO 11004:  "The Secretary . . . shall incorporate billeting plans in the general welfare guidance program for States . . . Participate in the preparation of plans for determining which areas are to be restored and in the development and coordination of plans for the movement of people on a temporary basis from areas to be abandoned to areas where housing is available or can be made available."  That sounds like soviet-style forced relocations of US citizens. (And didn't that work out so well for the Hurricane Katrina victims?)

EO 11051:  FEMA is authorized to put these (and other) orders into effect during national crises.  Specifically, "In carrying out his responsibilities under this order, the Director is authorized to issue such rules and regulations, and directives, consonant with law and Executive order, as he deems necessary and appropriate to the functions involved."  Whoa, Nelly!  That's an amazing amount of power to put in the hands of a person nobody voted for.

The bottom line:

Reluctantly, I agree that the President should be allowed to issue executive orders and proclamations.  I fear, as I always fear with government, that they have been and will continue to be misused.  If these are good ideas, then Congress should take them up in formal, public debate. These matters should not be decided in the Oval Office, where they get little, if any, media attention.

We have see administrations manufacture crises.  Who is to say that such a created crisis will never be used to strip Americans of their liberties?  Certainly, not I.
 

Thanks for listening, tune in next week for another rant.
 

[1] © 2011 Hillsdale College. Reprinted by permission from Imprimis, a publication of Hillsdale College.
[2] Executive Orders and Proclamations: A Study of a Use of Presidential Powers, a staff report by the House Committee on Government Operations (85th Congress, 1st Session, 1957).
[3] The complete texts of these EOs (and others) have been collected at DisasterCenter.com.  Each EO can be viewed at <http://www.disastercenter.com/laworder/XXXXX.htm> ("XXXXX" being the specific EO number.)  The site appears to be privately owned and operated, but has no "about" page.