Updated November 1, 2003
Presidential Executive Orders have been around since the time of Abraham Lincoln. The legality of such unilateral decisions (without the consent of Congress, the Supreme Court, or anyone else) is based on the idea that in times of crisis (wars, invasions, attacks, and so forth), Emergency War Powers may need be assumed, giving the President of the United States dictatorial powers. In times of real crisis, it’s not a good idea to have a lot of discussion or debate on actions to be taken. A single commander is the only effective means with which to combat the emergency.
Lincoln’s Executive Order #1 seemed to be a reasonable decision on his part. With seven States walking out of Congress, and thus eliminating the possibility of the quorum needed for the Congress to act, the only choice seemed to be to declare a State of Emergency and issue whatever Executive Orders were necessary. In times of Civil War, this is reasonable.
The only problem is that the United States has never ended the State of Emergency, and thus still allows Executive Orders as a legal prerogative of the President. Thus, President Bush (the younger) has dictatorial powers! Scary, huh?
This is to not say that the President has absolute power (the kind that allegedly absolutely corrupts). Executive Orders might seem to be the case of absolute power, but if any President decides to truly flex his muscles, there is a distinct possibility that he (or she) could blow the whole con, and would not be obeyed by critical elements in the federal and/or State governments (i.e. military). There could even be counter actions from -- of all people -- the people themselves!
On one hand, Executive Orders eliminate Constitutional rights. In a State of Emergency, niceties such as due process, rights to Trial By Jury, Common Law, Justice, equal protection under the law, and so forth and so on, are simply not feasible. They may be allowed in some cases, if only for appearances’ sake. But it is purely the discretion of the government as to what rights are allowed. The inalienable rights of the Constitution are temporarily suspended. Enemy Combatants can identified on a whim.
Any declared State of Emergency is supposedly limited to three years, and thereafter ends. However, the United States has been in a State of Emergency for about a hundred and forty years. All that has been necessary in the past is for each succeeding President to declare a State of Emergency (which may or may not get a lot of press -- probably not, inasmuch as during a State of Emergency, the press may have to be controlled). Justification for the continuing States of Emergency range from the US Bankruptcy to the recently declared War on Terrorism in the aftermath of 9-11-2001.
An essential difficulty in ending a State of Emergency is that there has been so much law that has come into being -- everything from the Infernal Revenue Service to a legal court system devoid of justice -- that going back to Constitutional guarantees would cause grave and irreparable damage to Corporate Politics, Corporate Rule, Capitalism, and the humongous bureaucracy of the US Government. Worse yet, it would be calamitous to the powermongers, the International Banksters, the thieves... Well... you get the idea.
On June 3, 1994, President Clinton signed Executive Order #12919. (The sheer number of Executive Orders should give you pause, not to mention the lack of media attention to this fact!) Clinton’s latest scandal, his #12919, gathered together into a single document all the power and authority of a multitude of Executive Orders issued by preceding presidents from John Kennedy until 1994.
The result of this particular Executive Order in consolidating previous presidential orders was to deliver unprecedented authority into the hands of the Chief Executive -- powers that far exceed those powers granted him under the U.S. Constitution. Within President Clinton’s EO #12919 are powers originally claimed by President Kennedy in a series of Executive Orders signed into “law” in February of 1962, which, if invoked would virtually suspend the greater portion of liberties guaranteed by the United States Constitution.
Section 3 of Kennedy's EO #10995 entitled, “ASSIGNING TELECOMMUNICATIONS MANAGEMENT FUNCTIONS”, there is the vague statement: “Such authority shall include the power to amend modify, or revoke frequency assignments.” Innocuous as this sounds, it embodies the power of the Chief Executive in time of “national emergency” to seize control of all radio and other telecommunications.
In addition to President Kennedy’s EO #10995, four other of his Orders were included by Clinton in his EO which contain provisions to disable constitutional rights. Executive Order #10997, for example, empowers the Secretary of the Interior to seize all energy production facilities -- specifically, “electrical power”, “petroleum”, “gas”, “solid fuels”, and “minerals”. Section 3, subsection (d) of that order, entitled “Claimancy” states:
“Prepare plans to claim materials, manpower, equipment, supplies and services needed in support of assigned responsibilities and other essential functions of the Department... to insure availability of such resources in an emergency.”
The word claim, in reference to “materials, manpower, equipment, supplies and services”, is noteworthy. “Claim”, as defined by Black's Law Dictionary, is, “To demand as one’s own or as one’s right... means by or through which claimant obtains possession or enjoyment of a privilege or thing. Demand for money or property as of a right...” In other words, the government may, upon declaration of a state of local or national emergency (or simply admitting to the currently installed State of Emergency) seize any of the above, private or otherwise, including “manpower”.
As to what constitutes a national emergency... “A state of national crisis; a situation demanding immediate and extraordinary national or federal action. Congress has made little or no distinction between a ‘state of national emergency’ and a ‘state of war.’” Brown v. Bernstein, D.C.Pa., 49 F.Supp. 728, 732. [Black’s Law Dictionary]
Therefore, in a State of national emergency (e.g. a “War on Terrorism”), the government has the authority under Executive Orders to:
1) Place all food resources under the Secretary of Agriculture (EO #10998),
2) Place control over all means of transportation, public and private, under the Secretary of Commerce (EO #10999), and
3) Establish under the Secretary of Labor’s discretion, all manpower resources, with the authority to “claim” services (labor) and involuntarily relocate workers (EO #11000). Collateral authority for this conscription of labor is given in Title 50 app. United States Code, Section 2153 “WAR AND NATIONAL DEFENSE” under the section addressing civilian disposition entitled, “DEFENSE PRODUCTION ACT OF 1950” in which is set forth that civilian personnel may be assigned work without regard to payment or reimbursement.
The list goes on and on. Harry V. Martin, in his article, “The Executive Order in Time of War”, describes one or two of the more dishonorable acts under the authority -- stealing Cherokee Indian lands and WWII Japanese interment camps, and then proceeds to matter-of-factly outline the even more hideous Executive Orders in the last thirty years.
For example, the creation of a Federal Emergency Management Agency (FEMA) via Executive Order 12148 has created a monster which sees its role as a “new frontier in the protection of individual and governmental leaders from assassination, and of civil and military installations from sabotage and/or attack, as well as prevention of dissident groups from gaining access to U.S. opinion, or a global audience in times of crisis.” [emphasis added] Martin goes on to point out a host of freedoms gone by the board via the legalisticly-styled executive orders, but which violate virtually every ideal the majority of citizens hold dear. It’s not a good scene!
For example, “Without Congressional approval, the President now has the power to transfer whole populations to any part of the country, the power to suspend the Press and to force national registration of all persons. The President, in essence, has dictatorial powers never provided to him under the Constitution. The President has the power to suspend the Constitution and the Bill of Rights in a real or perceived emergency. Unlike Lincoln and Roosevelt, these powers are not derived from a wartime need, but from any crisis, domestic or foreign, hostile or economic. Roosevelt created extraordinary measures during the Great Depression, but any President faced with a similar, or lesser, economic crisis now has extraordinary powers to assume dictatorial status.”
A former site -- http://www.whitehouse.gov/news -- used to be another source of information on executive orders, but some of the juicier ones, even then tended to be obscured in the legalese. And coming from the horse's mouth (or other end), one would probably not want to depend solely upon this source. And as our freedoms slowly slip away into the sunset, we don't even have a source at the white house, government, or news area in which to verify and/or disclaim rumors. This comes under the category of Tyranny.
Then there is Executive Order number 13223 of September 14, 2001 -- it’s amazing how quickly they put this one on the books! -- is entitled “Ordering the Ready Reserve of the Armed Forces To Active Duty and Delegating Certain Authorities to the Secretary of Defense and the Secretary of Transportation.” In the text, the Secretary of Transportation now has the authority “without the approval, ratification, or other action by the President”... “to recall any regular officer or enlisted member on the retired list to active duty and to detain any enlisted member beyond the term of his or her enlistment.”
And just when you thought it was safe to go into the water again!
The United States has legally been under a state of national emergency since 1933. The relevant legislation has never been repealed, thus leaving the president with instant powers to suspend the Constitution. Most legal scholars and legislators who have studied the matter concur that subsequent Presidents have already suspended the Constitution since the moment the first legislation was signed into law by President Franklin Roosevelt. The actual suspension of those constitutional rights awaits only the impetus of a national emergency requiring it.
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