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Old 03-18-2012, 12:36 PM
davidm davidm is offline
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March 16, 2012 Executive Order -- National Defense Resources Preparedness

I'm not sure where to put this but I think it may lead to political debate and there's no one factual answer, so I'll put it here.

Here's the actual executive order.
http://www.whitehouse.gov/the-press-...s-preparedness

The article that seems to be getting attention is here.
https://www.examiner.com/finance-exa...l-us-resources
Quote:
On March 16th, President Obama signed a new Executive Order which expands upon a prior order issued in 1950 for Disaster Preparedness, and gives the office of the President complete control over all the resources in the United States in times of war or emergency.

The National Defense Resources Preparedness order gives the Executive Branch the power to control and allocate energy, production, transportation, food, and even water resources by decree under the auspices of national defense and national security. The order is not limited to wartime implementation, as one of the order's functions includes the command and control of resources in peacetime determinations.
It goes on to talk about "dictatorial powers" and how this may indicate some coming national emergency, such as a war with Iran.

The Examiner is far from a "newspaper of public record" but the executive order does exist.

Of course, reactions on this are across the board, ranging from "Ohmigod, an Obama dictatorship!" to "It's about time, we're finally nationalizing the oil companies!".

I'm dismissing those ridiculous extremes and thinking that it's likely much ado about nothing, but what are the reasons for and implications of this?

Is this simply a renewal of an existing order? Is it just prudent preparation? What powers does this actually give to the executive branch?
  #2  
Old 03-18-2012, 01:24 PM
BigT BigT is offline
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I don't know if it's legally been the case, but I've always been under the impression the President could do this. At least, on TV they show martial law kicking in during disasters and not only during war.

And I'm almost 100% sure it was always possible when going to war with another country.
  #3  
Old 03-18-2012, 04:46 PM
Duckster Duckster is online now
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Quote:
The original EO dealing with national defense resources preparedness was issued in 1939 (EO 8248) according to the National Archives. It has been superseded a number of times, starting in 1951 by nearly every President through Bill Clinton, and amended twice by George W. Bush.

-- snip --

Again, this is nothing new or outside of existing statutory authority and the EO makes that clear by explicitly citing that authority. All this does is delegate the authority for these actions to the Cabinet officials. This again is nothing new, just a delegation of existing authority.
http://hotair.com/archives/2012/03/1...rab-or-update/
  #4  
Old 03-18-2012, 06:43 PM
Really Not All That Bright Really Not All That Bright is offline
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Quote:
Originally Posted by BigT View Post
I don't know if it's legally been the case, but I've always been under the impression the President could do this. At least, on TV they show martial law kicking in during disasters and not only during war.
Congress can. The POTUS only can if Congress says so.
Quote:
Originally Posted by Justice Hugo Black
We are asked to decide whether the President was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation's steel mills...

...It is clear that, if the President had authority to issue the order he did, it must be found in some provision of the Constitution. And it is not claimed that express constitutional language grants this power to the President. The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that "The executive Power shall be vested in a President . . ."; that "he shall take Care that the Laws be faithfully executed", and that he "shall be Commander in Chief of the Army and Navy of the United States."

The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute.
The Defense Production Act discussed in Duckster's link sets forth the existing statutory authority for such seizures. It's a fairly cumbersome process, which is why President Truman tried to circumvent it.

Last edited by Really Not All That Bright; 03-18-2012 at 06:47 PM.
  #5  
Old 03-20-2012, 07:33 AM
benbo1 benbo1 is offline
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As Freud said, 'sometimes a cigar is just a cigar'. Together with the Defense Authorization Act passed a couple of months ago, this can only be seen as a naked power grab by the Executive Branch. They (the big O & his ilk) continually try to bypass checks & balances, and we've never had a Constitutionally-challenged (and challenging) administration as the current one. The Healthcare debacle, taking states to court over enforcing immigration, taking other states to court for asking for id for voting, even Fast & Furious, all can be argued to be violations of the Constitution. The cigar is just a cigar.
  #6  
Old 03-20-2012, 09:18 AM
Martin Hyde Martin Hyde is offline
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Various executive orders and continuity of government plans come out all the time relating to things like this. During the Bush administration they released a continuity of government plan that was seen as Bush trying to establish a dictatorship because of some of the text in the document.

Essentially this is all nothing new, and the outrage and conspiracy theory talk over it is nothing new.

The Federal government needs plans for extraordinary action during extraordinary times, and most of them fall short of the level of power Lincoln routinely used during the American Civil War, and we're all still enjoying our constitutional privileges after all these years.
  #7  
Old 03-20-2012, 09:22 AM
erislover erislover is offline
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Quote:
Originally Posted by Martin Hyde View Post
The Federal government needs plans for extraordinary action during extraordinary times, and most of them fall short of the level of power Lincoln routinely used during the American Civil War, and we're all still enjoying our constitutional privileges after all these years.
Because no one has happened to get it right so far is not a great reason to ignore this kind of thing, if you are against it. We're almost in an age of total surveillance possibility, Lincoln had nothing even comparable. This is not the kind of power that should sit with an individual in a free country.

Last edited by erislover; 03-20-2012 at 09:23 AM.
  #8  
Old 03-20-2012, 09:25 AM
Ravenman Ravenman is offline
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Quote:
Originally Posted by benbo1 View Post
As Freud said, 'sometimes a cigar is just a cigar'. Together with the Defense Authorization Act passed a couple of months ago, this can only be seen as a naked power grab by the Executive Branch. They (the big O & his ilk) continually try to bypass checks & balances, and we've never had a Constitutionally-challenged (and challenging) administration as the current one. The Healthcare debacle, taking states to court over enforcing immigration, taking other states to court for asking for id for voting, even Fast & Furious, all can be argued to be violations of the Constitution. The cigar is just a cigar.
You don't know even the first thing about this subject.

The Defense Production Act dates back to the Truman Administration and, among other things, gives the government power to preempt the production of commercial items in order to prioritize the delivery of items and materials that are critical to military needs. These powers are used routinely, as seen here.

For example, about five years ago, the government declared that it needed as much armor plate and ballistic glass as could be produced in order to build MRAP armored vehicles. We built more than 10,000 of those vehicles to protect troops from roadside bombs in Iraq and Afghanistan. If you were running a steel mill that produced armor plate, you would have been obligated to set aside delivery of any commercial orders (perhaps your armor plate was used in bullet-proof sedans sold to dignitaries, CEOs, celebrities, etc) so that the government would get first delivery of all the steel that it needed.

Another example is both Clinton and Bush II used Defense Production Act powers (among others) to require that California be supplied with electricity and natural gas to limit the impact of blackouts and power shortages in 2001.

This Executive Order does little more than reorganize the responsibilities of government to handle particular resources within the scope of the law. Literally every President has used these powers since (and including) Truman.

So, it is indeed true: sometimes a cigar is just a cigar. In this case, the cigar is your criticism of Obama for "dictatorial powers," which is quite simply political ax-grinding, with no substantive insight on the actual matter of law at hand.

ETA: I forgot to mention that the Defense Production Act isn't some antiquated law that everyone has forgotten about. In fact, Congress reauthorizes the Defense Production Act every couple of years, most recently in 2009

Last edited by Ravenman; 03-20-2012 at 09:28 AM.
  #9  
Old 03-20-2012, 09:39 AM
Baracus Baracus is offline
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I don't quite understand what people think this would get Obama. If he was going for an unconstitutional, dictatorial power grab, why tip his hand? If he tries to subsequently nationalize the oil industry and Congress complains, do people think that he can just point to this order and say, "Ha I authorized myself to do this!" and Congress will just say "fuck, he's right" and let him do whatever he wants?
  #10  
Old 03-20-2012, 09:45 AM
Really Not All That Bright Really Not All That Bright is offline
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Quote:
Originally Posted by Ravenman
The Defense Production Act dates back to the Truman Administration and, among other things, gives the government power to preempt the production of commercial items in order to prioritize the delivery of items and materials that are critical to military needs.
He was talking about the [National] Defense Authorization Act (the one that lets him detain terrorism suspects without trial), not the Defense Production Act.

I'm not sure how an act of Congress qualifies as a "naked power grab by the Executive Branch", but there you go.
Quote:
Originally Posted by benbo1
The Healthcare debacle, taking states to court over enforcing immigration, taking other states to court for asking for id for voting, even Fast & Furious, all can be argued to be violations of the Constitution.
If by "Healthcare debacle", you mean the Patient Protection and Affordable Care Act, sure it can be argued. So what? The Social Security Act can also be argued to be a violation of the Constitution. You do know that Obama can't actually pass legislation, right?
Quote:
...taking states to court over enforcing immigration...
No, unless you mean "people who don't know anything about constitutional law could argue it."
Quote:
...taking other states to court for asking for id for voting...
Taking states to court is pretty much what the federal government is supposed to do in the event of a conflict between state and federal law. Would you rather they sent in the army?
Quote:
...even Fast & Furious...
Okay, I'll bite. What constitutional provision was violated? It was a stupid idea. It wasn't an unconstitutional one. It also wasn't Obama's idea - the program began in 2006.

Sometimes a cigar is just a OHMYGODOBAMAISHIJACKINGTHECOUNTRY cigar.

Last edited by Really Not All That Bright; 03-20-2012 at 09:47 AM.
  #11  
Old 03-20-2012, 09:46 AM
DrFidelius DrFidelius is online now
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Quote:
Originally Posted by Baracus View Post
I don't quite understand what people think this would get Obama. If he was going for an unconstitutional, dictatorial power grab, why tip his hand? If he tries to subsequently nationalize the oil industry and Congress complains, do people think that he can just point to this order and say, "Ha I authorized myself to do this!" and Congress will just say "fuck, he's right" and let him do whatever he wants?
It seems to be popular among the same groups who believe in "Sovereign Citizenship" and others whose understanding of law and government is basically that there are Magic Words that only lawyers and politicians know how to use.
  #12  
Old 03-20-2012, 10:15 AM
Ravenman Ravenman is offline
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Quote:
Originally Posted by Really Not All That Bright View Post
He was talking about the [National] Defense Authorization Act (the one that lets him detain terrorism suspects without trial), not the Defense Production Act.

I'm not sure how an act of Congress qualifies as a "naked power grab by the Executive Branch", but there you go.
He was talking about the executive order, and calling it a power grab like the NDAA. The NDAA wasn't the focus of his comments, it was amplification of his baseless assertion that the executive order is unconstitutional.
  #13  
Old 03-20-2012, 10:21 AM
Really Not All That Bright Really Not All That Bright is offline
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Well, in that case I had already pointed out that the DPA dates back to Truman. So there!
  #14  
Old 03-20-2012, 10:32 AM
Ravenman Ravenman is offline
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Originally Posted by Really Not All That Bright View Post
Well, in that case I had already pointed out that the DPA dates back to Truman. So there!
I was going to say that I fully agreed with the rest of your points... so put my agreement with you in your pipe and smoke it!

Last edited by Ravenman; 03-20-2012 at 10:33 AM.
  #15  
Old 03-20-2012, 10:43 AM
Really Not All That Bright Really Not All That Bright is offline
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...okay. Pass the Funnyuns.
  #16  
Old 03-20-2012, 03:12 PM
Chessic Sense Chessic Sense is offline
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Quote:
Originally Posted by Really Not All That Bright View Post
He was talking about the [National] Defense Authorization Act (the one that lets him detain terrorism suspects without trial),
And even that's not accurate. The laws of war allow him to indefinitely detain terrorism suspects. The NDAA merely says that the "Armed Forces of the United States shall hold" the person IF that person:
Quote:
is determined--

(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and

(B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners
AND they're a covered person by the 9/11 AUMF:
Quote:
(b) Covered Persons- A covered person under this section is any person as follows:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(c) Disposition Under Law of War- The disposition of a person under the law of war as described in subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).

(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.

(4) Transfer to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity.
EXCEPT THAT

Quote:
(b) Applicability to United States Citizens and Lawful Resident Aliens-

(1) UNITED STATES CITIZENS- The requirement to detain a person in military custody under this section does not extend to citizens of the United States.

(2) LAWFUL RESIDENT ALIENS- The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.

In other words, "If a person is a member of al-Qaeda, the military must be the ones to hold him indefinitely, unless they're a US citizen or Lawful Resident Alien." Yeah, real power-grabby, there. I'd also like to point out that since time immemorial, a commander in chief has been legally allowed to indefinitely hold an enemy combatant.
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