The forgotten 13
So yesterday I took a gander at Executive Order 13603 and my brain would not shut off. The next few minutes I'd like to try and paint a picture for you all and where I think we're headed but before I do that I'd like to set the tone by posting the following:
The 13th amendment, which formally abolished slavery in the United States, passed the Senate on April 8, 1864, and the House on January 31, 1865. On February 1, 1865, President Abraham Lincoln approved the Joint Resolution of Congress submitting the proposed amendment to the state legislatures. The necessary number of states ratified it by December 6, 1865. The 13th amendment to the United States Constitution provides that "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."
In 1863 President Lincoln had issued the Emancipation Proclamation declaring “all persons held as slaves within any State, or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free.” Nonetheless, the Emancipation Proclamation did not end slavery in the nation. Lincoln recognized that the Emancipation Proclamation would have to be followed by a constitutional amendment in order to guarantee the abolishment of slavery.
The 13th amendment was passed at the end of the Civil War before the Southern states had been restored to the Union and should have easily passed the Congress. Although the Senate passed it in April 1864, the House did not. At that point, Lincoln took an active role to ensure passage through congress. He insisted that passage of the 13th amendment be added to the Republican Party platform for the upcoming Presidential elections. His efforts met with success when the House passed the bill in January 1865 with a vote of 119–56.
With the adoption of the 13th amendment, the United States found a final constitutional solution to the issue of slavery. The 13th amendment, along with the 14th and 15th, is one of the trio of Civil War amendments that greatly expanded the civil rights of Americans.
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.<...