Executive Orders - Edicts From a Presidential Throne: Part 2

In Part One last month, we focused on the history of executive orders and the potential for abuse when these instruments are used to illegitimately further the international agenda expressed in UN treaties.

This month, we will look at how executive orders may be used to increase presidential authority, thus enabling a president to legislate during periods of what he or she may deem to be a national emergency.  The possibility for corruption within this realm cannot be overstated.

Recipe for Tyranny

One of the primary uses of executive orders involves the exercise of so-called emergency powers.  This is perhaps the most dangerous possibility for the misuse of executive orders. 

The most obvious national emergency situation involves war, but other domestic and international crises (real or perhaps even fabricated) have come into play to justify the use of executive orders.

For example, in 1971 Richard Nixon declared an emergency because of the growing discrepancy in our federal balance of payments.  He disconnected the value of the dollar from the gold standard, levied a surtax on imports, and froze domestic prices for 90 days. 

Many people thought Nixon was overreacting, but even if he weren't, the situation clearly showed a president pushing the limits of Constitutional power.¹

On June 3, 1994, President Bill Clinton signed an executive order that consolidated the powers set forth in a number of executive orders that were issued by his predecessors.²   

Originally created in 1962 by President John F. Kennedy, this particular collection of executive orders allows a total subjugation of the fundamental freedoms that Americans often take for granted.

The first of the Kennedy-issued executive orders (E.O. 10995) allows the president to take control of all media, as long as a national emergency exists.  Included as media are radio, television and, conceivably, telephone and Internet outlets.³   Other executive orders from this cluster (E.O. 10997, 10990, 11003 and 11005) allow the seizure of all facilities that produce energy, including electricity, gasoline, and solid fuels.⁴ 

All means of transportation, both public and private, including ground and air transportation, could be completely controlled by the executive branch as well.⁵ 

Another declares that our food resources could be taken over by the executive branch (E.O. 10998).  This includes all agriculture, distribution, and retail facilities.⁶   

Furthermore, reminiscent of the Japanese internment under E.O.9066, other executive orders allow for the involuntary registration and relocation of U.S. citizens into labor groups under government surveillance (E.O. 11000, 11002, 11004).  The order also grants the executive branch authority to take over labor, services, and manpower resources.⁷   

Under E.O. 11921, the government is empowered to take over health, education, welfare, mechanisms of production and distribution, energy sources, wages, salaries, credit and the flow of money. 

There is very little of the economy and private life which hasn't been included under these orders. 

A common but erroneous belief is that the above executive orders have either expired or been rescinded.  We shall see in the next section that this is not true.

Also, what comprises a national emergency has not been clearly defined by the courts.  Rather than setting forth specific criteria, the courts have given the President wholesale discretion to determine the boundaries of what constitutes a national emergency.  

The familiar rationale is that extra latitude should be given to the President in this area due to the need for expediency.⁸ 
 
Layers of Legal Confusion

The current legal status of the emergency powers of the President involves so many statutes and executive orders that misconceptions abound.   Since some of these legal instruments revoke prior ones, and some absorb the content of others, the confusion seems to multiply. 

Executive orders tend to build upon each other, with previous orders justifying subsequent ones.  It is not surprising that the Pulitzer Prize-winning historian, Arthur Schlesinger, has dubbed this subject "an uncoordinated, uncodified, crazy-quilt collection of powers."⁹

In 1933, at the request of President Roosevelt, the U.S. Congress passed the War and Emergency Powers Act, which has never been repealed.  This legislation was an amendment to the Trading with the Enemies Act , which was originally passed by Congress in 1917. 

Due to the circumstances surrounding World War I, the President was granted full authoritarian control of citizens of enemy countries, and their property, who were living or working in this country.¹⁰ 

This act expressly excluded domestic transactions; that is, those being conducted by American citizens.  The amended 1933 version effectively reclassified U.S. citizens within the "enemy" category.  At this point, U.S. citizens were made enemies of the federal government.

In 1971 Congress was astonished to discover that our nation had been in a continuous state of national emergency since Roosevelt's proclamations of 1933.  Additionally, still binding were the emergencies proclaimed by Truman in 1950 and Nixon in 1970. 

This revelation caused the Senate to issue a committee report in 1973, which disclosed that the 1933 War and Emergency Powers Act had engendered 470 provisions of federal law with various emergency powers and related provisions. 

In 1976 Congress passed the National Emergencies Act , which terminated any existing declarations of national emergency effective September 14, 1978.¹¹   Nevertheless, the 1976 Act did not affect the 1933 Act in any manner.  Moreover, it did not stop subsequent presidents from declaring states of emergency. 

In fact, as of this writing, President Clinton has issued executive orders for twelve of them,¹²  placing the country in a series of states of emergency.

Many of the executive orders in this area grant a significant degree of delegated emergency power to divisions of the executive branch.  These powers are centered in an agency of the federal government known as the Federal Emergency Management Agency (FEMA).  FEMA itself came into existence by means of an executive order.¹³  

An emergency is defined by federal law as  "...any occasion or instance for which, in the determination of the President, federal assistance is needed to supplement state and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States."¹⁴   

What the War and Emergency Powers Act does, in conjunction with the above-mentioned executive orders, is enable the President to suspend the Constitution at will.  All the President needs to justify this action is a national emergency. 

Note that it is the President himself who declares the emergency; not Congress.  Americans should never tolerate the suspension of their Constitutional rights under any circumstance, even when the situation is labeled with an "emergency" status.

A Plan of Action

On the optimistic side, there are several things that average, ordinary citizens can do to address the aforementioned problems and evoke the necessary changes. 

Initially, we can obtain as much knowledge on the subject as we can and spread the word. This is one of the most important techniques we have at our disposal.  We know that with the Almighty's guidance, a humble people can make a tremendous difference.

Executive orders can also be challenged formally in two ways:

1) A lawsuit could be brought if the order contradicts the original legislative intent of the law or has no underlying statutory authority, and

2) Congress could pass a bill repealing or modifying a specific executive order.  That bill would, of course, be subject to a presidential veto and would then need an override vote.

Representative Jack Metcalf (R-WA) has taken a positive step.  He is sponsoring House Concurrent Resolution 26.  It expresses the sense of the Congress that any executive order which infringes on the powers and duties of the Congress under Article I, Section 8 of the Constitution, or requires the expenditure of federal funds not specifically appropriated for the purpose of the executive order, is advisory only. 

This is a non-binding resolution, perhaps because a veto could be avoided.  We urge you to call Representative Metcalf as well as your own representatives and express support for this bill and ask that your representative become a cosponsor. 

You might also tell your representatives that:

1)  They should make this measure binding; and

2)  Congressional notice and review should be mandatory for all executive orders.

This bill is currently stranded in the Judiciary Committee.  Therefore, a dual purpose telephone call to your favorite House Manager would be helpful.  After telling one of these courageous gentlemen how proud we all were of their actions, bring up House Concurrent Resolution 26 and relate the above remarks concerning the bill.

We cannot stand by and let this precious endowment of liberty be undermined.  As the famous jurist, Learned Hand once mused, "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it." 

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James Hirsen is a Professor of Law at Trinity Law School and an attorney in Orange County, California.  His new book Government by Decree deals with the subject of executive orders.