Executive Orders: Is the Constitution being shackled?

Executive Orders: Is the Constitution being shackled?

By Brent Daggett

Contributing writer for End the Lie

“I believe there are more instances of abridgment of the freedom of the people by gradual and silent encroachments than violent and sudden usurpations.” — James Madison at the Virginia Ratification debates.

When one analyzes Madison’s logic, it seems prophetic, especially if one applies it to executive orders.

History of the Executive Order

In a February 21, 2001 article, The Use and Abuse of Executive Orders and Other Presidential Directives, Todd Gaziano, Director, Center for Legal & Judicial Studies at the Heritage Foundation, illustrated the courses of action leading to the executive order and the legal ramifications.

There are two types of presidential directives:

One of the directives is a broad category including written instructions that are issued by the president to executive branch officials on how they are to carry out their obligations.

The second encompasses written statements communicating a presidential decision or declaration to a broad group of individuals such as government officials, the general public or even foreign governments.

Three months after being sworn in as President, George Washington sent instructions to the Confederation government inquiring them to create a report, “to impress me with a full, precise, and distinct general ideas of the United States.”

Even though the term “executive order” wasn’t used until 1862, the request issued by Washington was the precursor.

Little did Washington know how widespread directives would become in the future.

According to Gaziano, while the list may not be complete, 24 presidential directives are identified.

The list is as follows:

“administrative orders; certificates; designations of officials; executive orders; general licenses; interpretations; letters on tariffs and international trade; military orders; various types of national security instruments (such as national security action memoranda, national security decision directives, national security directives, national security reviews, national security study memoranda, presidential review directives, and presidential decision directives); presidential announcements; presidential findings; presidential reorganization plans; presidential signing statements; and proclamations.”

Let’s now flash-forward to the debate on the Constitutionality of executive orders.

Current Controversy

Despite a president’s usage of executive orders, there is no provision unequivocally granting that specific power.

Article I, Section 1 of the Constitution reads, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

Article II, Section 1 reads, “The executive power shall be vested in a President of the United States of America.”

Article II, section 3 asserts that, “The President shall take care that the laws be faithfully executed…”

As one can clearly see, the existing controversy surrounds the president’s ability to manipulate the legislative process, thus creating a system of unchecked balances.

By using the logic of, being that I have the ability to make sure all laws are faithfully executed and that executive power is vested in a president, then I’m guaranteed the authority to pass laws I see fit without approval.

However, that is not the full case, as executive orders can be challenged.

If Congress is appalled at what the executive branch is doing, members can rewrite or amend a previous law.

Secondly, if a president determines he or she will veto it, Congress would then need a 2/3 majority to override it.

While this may be difficult to fathom that our Congress in its current form would actually do this, there were two instances throughout history where an executive order was ruled unconstitutional.

On October 27, 1999, attorney at law, William J. Olson gave a testimony in front of the Subcommittee on Legislative and Budget Process, part of the Committee on Rules, in which he elaborated upon The Impact of Executive Orders on the Legislative Process: Executive Lawmaking?

Here some excerpts of Olson’s speech:

“My first personal experience with an unconstitutional exercise by the executive of a legislative power arose in the mid-1980′s, shortly after I completed serving three part-time positions in the Reagan Administration, when I filed suit against the Reagan Administration for usurping the Senate’s power to ratify treaties before they became effective. The case was The Conservative Caucus v. Reagan, litigated in the U.S. District Court for the District of Columbia. Our client had sought to prevent Secretary of Defense Casper Weinberger from ordering the Pentagon to unilaterally implement the SALT II treaty – which the Senate had thus far refused to ratify. President Reagan had announced his determination to implement the treaty, notwithstanding the Senate’s constitutional role. Unfortunately, we were unable to obtain a review on the merits, as the suit was dismissed, as so many similar suits have been, on the theory that our client lacked standing to bring suit.

The simple truth is that the courts cannot be counted upon to check Presidential power — our research has been able to identify only two cases in the history of the country in which the courts have completely struck down an executive order.

The first of these was in 1952, when the U.S. Supreme Court negated the seizure of the steel mills ordered by President Truman, observing that:

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 first section of the first article says that “All legislative Powers herein granted shall be vested in a Congress of the United States ….” After granting many powers to the Congress, Article I goes on to provide that Congress may “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” [Youngstown Sheet & Tube v. Sawyer.]

Notwithstanding this U.S. Supreme Court decision, presidents of both parties continued to implement controversial initiatives using presidential directives — often in the face of Congressional opposition.

The other time the court completely struck down an executive order was President Clinton’s executive order relating to the hiring of permanent striker replacements by federal contractors, and the decision of the U.S. Court of Appeals for the D.C. Circuit was not appealed to the U.S. Supreme Court. [Chamber of Commerce of the U.S. v. Reich.]

By contrast, H.R. 2655 (which was introduced in the 106^th Congress 1999-2000 and died before being passed), Rep. Paul’s and Rep. Metcalf’s approach, holds great hope to solve this recurrent problem. This bill, which, as a proposed statute, would become legally binding, would:

• Establish the first statutory definition of “presidential directive” (it uses the term “presidential order”);
• Expand access to the courts to challenge the legality of presidential orders;
• Define the constitutional powers which the president may exercise by presidential order; would require any statutory authority for the presidential order to be express for the order to be valid;
• Terminate the powers and authorities possessed by the president, executive agencies, or federal officers and employees, that are derived from the currently existing states of national emergency;
• Vest the authority to declare future national emergencies in Congress alone; and
• Repeal the ineffective War Powers Resolution.

Lastly, I would say that concerns about presidential lawmaking must not be written off as attacks on the policies underlying the executive orders.

This is not partisan politics masquerading as separation of powers issues. It is true that it finds fault with President Clinton, but it is also finds fault with Presidents Reagan, Bush, and others.

As a review of the above-mentioned documents will demonstrate, presidential directives were used to legislate and accomplish political objectives which could be viewed as “liberal” and political objectives which could be viewed as “conservative.”

No constitutional power should be misused, irrespective of the benefit perceived for a political objective. If constitutional processes are violated, in the end, we all lose.

In his concurring opinion in Youngstown Sheet and Tube, Justice Frankfurter observed:

The tragedy of such stalemates might be avoided by allowing the President the use of some legislative authority.The Framers with memories of the tyrannies produced by a blending of executive and legislative power rejected that political arrangement. Some future generation may, however, deem it so urgent that the President have legislative authority that the Constitution will be amended. We could not sanction the seizures and condemnations of the steel plants in this case without reading Article II as giving the President not only the power to execute the laws but to make some. Such a step would most assuredly alter the pattern of the Constitution…” [Emphasis added.]

The efforts of Olson, Paul and Metcalf over 12 years ago pretty much fell on deaf ears, since the goals have not come to fruition amongst the congressional body.

With this in mind, we must not only look at what foundation has been laid, but what is also progressing.  For if we do not, our future has the propensity to turn out bleak, to say the least.

Here are some executive orders one should be troubled by:

Executive Order #10995:   ”SEC. 6. 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;

(b) Development of telecommunications plans, policies, and programs under which full advantage of technological development will accrue to the Nation and the users of telecommunications; and which will satisfactorily serve the national security; sustain and contribute to the full development of world trade and commerce; strengthen the position and serve the best interests of the United States in negotiations with foreign nations; and permit maximum use of resources through better frequency management;

(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;

(d) Implementation of the national policy of development and effective use of space satellites for international telecommunications services.”

Essentially, this order authorizes the seizure of all telecommunications equipment in the United States.

Executive Order #10997:  “The Secretary of the Interior (hereinafter referred to as the Secretary) shall prepare national emergency plans and develop preparedness programs covering (1) electric power; (2) petroleum and gas; (3) solid fuels; and (4) minerals.” 

Essentially, this order allows for the government to seize all energy resources including fuels and sources of fuel, minerals and even power companies.

Executive Order #10998:  ”The Secretary of Agriculture (hereinafter referred to as the Secretary) shall prepare national emergency plans and develop preparedness programs covering: Food resources, farm equipment, fertilizer, and food resource facilities, as defined below; rural fire control; defense against biological warfare, chemical warfare, and radiological fallout pertaining to agricultural activities; and rural defense information and education. These plans and programs shall be designed to develop a state of readiness in these areas with respect to all conditions of national emergency, including attack upon the United States…”

Essentially, this order gives the government the ability to seize all food supplies along with food resources including active farms and farm land.

Executive Order #10999:  ”Development and coordination of over-all policies, plans, and procedures for the provision of a centralized control of all modes of transportation in an emergency for the movement of passenger and freight traffic of all types, and the determination of the proper apportionment and allocation of the total civil transportation capacity, or any portion thereof, to meet over-all essential civil and military needs.”

Essentially, this order gives the government authorization to seize every means of transportation including the privately owned vehicles of citizens along with complete control of highways, roads, seaports and so on.

Executive Order #11000:   ”The Secretary of Labor (hereinafter referred to as the Secretary) shall prepare national emergency plans and develop preparedness programs covering civilian manpower mobilization, more effective utilization of limited manpower resources including specialized personnel, wage and salary stabilization, worker incentives and protection, manpower resources and requirements, skill development and training, research, labor-management relations, and critical occupations. These plans and programs shall be designed to develop a state of readiness in these areas with respect to all conditions of national emergency, including attack upon the United States…”

This order basically allows the government to conscript Americans to carry out work in a supposed time of national emergency under the command of federal authorities. It even gives them the power to move individuals and “stabilize” salaries by setting them themselves.

Executive Order #11001:  ”The Secretary of Health, Education, and Welfare (hereinafter referred to as the Secretary) shall prepare national emergency plans and develop preparedness programs covering health services, civilian health manpower, health resources, welfare services, and educational programs…”  

This order continues to put more areas into government hands including health services and manpower, health resources (meaning facilities, drugs, etc.) along with welfare services and education programs.

Executive Order #11002:  ”Cooperation with Department of Defense.  In consonance with national civil defense plans, programs, and operations of the Department of Defense under Executive Order No. 10952, the Postmaster General shall:

(a) Registration system. Assist in planning a national program and developing technical guidance for States, and directing Post Office activities concerned with registering persons and families for the purpose of receiving and answering welfare inquiries, and reuniting families in civil defense emergencies. The program shall include:

1. Forms. Procurement, transportation, storage, and distribution of safety notification and emergency change of address cards in quantities and localities jointly determined by the Department of Defense and the Post Office Department.

2. Training. Conduct of training programs for postal employees which will enable them to operate emergency central postal directories and to assist in the operation of a national emergency registration system including support of local welfare activities in reuniting families.

(b) Damage assessment. Maintain a capability to assess the effects of attack on its postal service and resources, both at national and field levels, and provide data to the Department of Defense…”

Essentially, this order gives the Post Master General, in cooperation with the Department of Defense and others, the power to register every American, supposedly for receiving and answering welfare inquiries and reuniting families, although this is in no way limited to these purposes. There is no mention of the registration being voluntary.

Executive Order #11003:  ”The Administrator of the Federal Aviation Agency shall:

(a) National Program Guidance. Develop plans and issue national program guidance designed to utilize to the maximum extent the existing non-military facilities, technical competence and resources of the Federal Government, the States and the local political subdivisions thereof, and non-governmental organizations and systems engaged in aeronautical activities to promote the effective and safe use and maintenance of aeronautical facilities, equipment, and services in an emergency.

(b) Operations. 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.

(c) Priorities and allocations. Develop plans and procedures for controls, allocations and priorities concerned with the utilization of aircraft other than air carrier aircraft in an emergency.

(d) Resources. Periodically assess assigned resources available from all sources in order to estimate availability under an emergency situation, analyze resource estimates in relation to estimated requirements in order to identify problem areas and develop appropriate recommendations and programs. Provide data and assistance before and after attack for national resource evaluation purposes of the Office of Emergency Planning.

(e) Requirements. Determine emergency requirements for material and supplies needed to manufacture, maintain or operate air navigation facilities, civil airports, and civil aircraft for which the Administrator is responsible.

(f) Claimancy. Prepare plans to claim materials, manpower, equipment, supplies, and services needed to carry out assigned responsibilities and other essential functions of the agency from the appropriate agencies and work with such agencies in developing programs to insure availability of such resources in an emergency…”

This puts even more power in government hands, including airports and all aircraft including public, commercial and private assets. It potentially allows for seizure of personnel to work these facilities under section (f).

Executive Order #11004:   ”The Administrator of The Housing and Home Finance Administrator shall:

(a) New housing. Develop plans for the construction and management of new housing and the community facilities related thereto, when and where it is determined to be necessary with public funds through direct Federal action; or the construction of new housing through financial or credit assistance, in support of production programs.

(b) Communities. Develop plans for the selection, acquisition, development, and disposal of areas for civilian uses in new, expanded, restored, or relocated communities; and for the construction of housing for new or restored communities.

(c) Resources. Periodically assess assigned resources available from all sources in order to estimate availability under an emergency situation, analyze resource estimates in relation to estimated requirements in order to identify problem areas and develop appropriate recommendations and programs. Provide data and assistance, before and after attack for national resources evaluation purposes of the Office of Emergency Planning.

(d) Priorities. Develop standards and priorities for guidance of States and communities in making maximum use of and allocating available housing resources.

(e) Requirements. Periodically assemble, develop as appropriate, and evaluate requirements with respect to assigned resources and services. Such estimates shall take into consideration the geographical distribution of requirements under emergency conditions.

(f) Claimancy. Prepare plans to claim materials, manpower, equipment, supplies, and services needed in support of assigned responsibilities and other essential functions of the agency from appropriate agencies, and work with such agencies in developing programs to insure availability of such resources in an emergency.

(g) Distribution. Develop allocation and distribution control systems consistent with the priorities and allocations procedures prescribed by the Department of Commerce for materials and equipment needed for housing, and develop programs for the domestic distribution and use of mobile lodging facilities in an emergency.

(h) Stockpiles. Assist the Office of Emergency Planning in formulating and carrying out plans for stockpiling of strategic and critical materials, and survival items in the housing field.

(i) Economic stabilization. Cooperate with the Office of Emergency Planning and the Federal financial agencies in the development of preparedness measures involving emergency financing, real estate credit, and rent stabilization…”

Essentially, this order allows the government to seize control of both housing and finance industries and even allows the government to create relocation sites which could potentially include so-called FEMA Camps.

Executive Order #11005:     ”SECTION 1. Scope. The Interstate Commerce Commission (hereinafter referred to as the Commission shall prepare national emergency plans and develop preparedness programs covering railroad utilization, reduction of vulnerability, maintenance, restoration, and operation in an emergency; motor carrier utilization, reduction of vulnerability, and operation in an emergency; inland waterway mutilization of equipment and shipping, reduction of vulnerability, and operation in an emergency, excepting the St. Lawrence Seaway; and also provide guidance and consultation to domestic surface transportation and storage industries, as defined below, regarding emergency preparedness measures, and to States regarding development of their transportation plans in assigned areas. These plans and programs will be designed to develop a state of readiness in these areas with respect to all conditions of national emergency, including attack upon the United States.

SEC. 2. Definitions. As used in this order: Domestic surface transportation and storage” means rail, motor, and inland water transportation facilities and services and public storage. “Public storage” as used herein includes warehouses and other places which are used for the storage of property belonging to persons other than the persons having the ownership or control of such premises. “Inland water transportation” includes shipping on all inland waterways and Great Lakes shipping engaged solely in the transportation of passengers or cargo between United States ports on the Great Lakes. Specifically excluded, for the purposes of this order, are petroleum and gas pipelines, petroleum and gas storage, agricultural and food resources storage, including the cold storage of food resources, the St. Lawrence Seaway, ocean ports and Great Lakes ports and port facilities, highways, streets, roads, bridges, and related appurtenances, maintenance of inland waterways, and any transportation owned by or pre-allocated to the military…”

Essentially, this allows for the government to seize all inland waterways and railroads, not to mention storage facilities for just about everything, petroleum and gasoline pipelines and more.

Executive Order #13575-  Establishment of the White House Rural Council.  “Sec. 4. Mission and Function of the Council. The Council shall work across executive departments, agencies, and offices to coordinate development of policy recommendations to promote economic prosperity and quality of life in rural America, and shall coordinate my Administration’s engagement with rural communities. The Council shall:

(a) make recommendations to the President, through the Director of the Domestic Policy Council and the Director of the National Economic Council, on streamlining and leveraging Federal investments in rural areas, where appropriate, to increase the impact of Federal dollars and create economic opportunities to improve the quality of life in rural America;

(b) coordinate and increase the effectiveness of Federal engagement with rural stakeholders, including agricultural organizations, small businesses, education and training institutions, health-care providers, telecommunications services providers, research and land grant institutions, law enforcement, State, local, and tribal governments, and nongovernmental organizations regarding the needs of rural America;

(c) coordinate Federal efforts directed toward the growth and development of geographic regions that encompass both urban and rural areas; and

(d) identify and facilitate rural economic opportunities associated with energy development, outdoor recreation, and other conservation related activities…”

It’s a also worth noting the council members involved in executive order 13575:

(1) the Department of the Treasury; Timothy Geithner

(2) the Department of Defense; Robert Gates

(3) the Department of Justice; Eric Holder

(4) the Department of the Interior; Ken Salazar

(5) the Department of Commerce; Gary Locke

(6) the Department of Labor; Hilda Solis

(7) the Department of Health and Human Services; Kathleen Sebelius

(8) the Department of Housing and Urban Development; Shaun Donovan

(9) the Department of Transportation; Ray LaHood

(10) the Department of Energy; Dr. Steven Chu

(11) the Department of Education; Arne Duncan

(12) the Department of Veterans Affairs; Eric Shinseki

(13) the Department of Homeland Security; Janet Napolitano

(14) the Environmental Protection Agency; Lisa Jackson

(15) the Federal Communications Commission; Michael Copps

(16) the Office of Management and Budget; Peter Orszag

(17) the Office of Science and Technology Policy; John Holdren

(18) the Office of National Drug Control Policy; R. Gil Kerlikowske

(19) the Council of Economic Advisers; Austan Goolsbee

(20) the Domestic Policy Council; Melody Barnes (former VP at Center for American Progress)

(21) the National Economic Council; Gene B. Sperling

(22) the Small Business Administration; Karen Mills

(23) the Council on Environmental Quality; Nancy Sutley

(24) the White House Office of Public Engagement and Intergovernmental Affairs; Valerie Jarrett

This order essentially gives the federal government control of local land.

EXECUTIVE ORDER 12656 –  “Sec. 104. Management of National Security Emergency Preparedness.

(a) The National Security Council is the principal forum for consideration of national security emergency preparedness policy.
(b) The National Security Council shall arrange for Executive branch liaison with, and assistance to, the Congress and the Federal judiciary on national security-emergency preparedness matters.
(c) The Director of the Federal Emergency Management Agency shall serve as an advisor to the National Security Council on issues of national security emergency preparedness, including mobilization preparedness, civil defense, continuity of government, technological disasters, and other issues, as appropriate. Pursuant to such procedures for the organization and management of the National Security Council process as the President may establish, the Director of the Federal Emergency Management Agency also shall assist in the implementation of and management of the National Security Council process as the President may establish, the Director of the Federal Emergency Management Agency also shall assist in the implementation of national security emergency preparedness policy by coordinating with the other Federal departments and agencies and with State and local governments, and by providing periodic reports to the National Security Council on implementation of national security emergency preparedness policy…”

This order places the secretive National Security Council (yes, the same one which authorizes assassinations of Americans) in charge of emergency powers and preparedness. It also gives them the power to ramp up domestic intelligence operations and surveillance of Americans while also giving them the ability to restrict freedom of movement as well as isolate groups of civilians. Furthermore, it gives the National Guard the power to close borders and take command of the American airspace and ports.

EXECUTIVE ORDER 12919 – Collects EOs 10995, 10997, 10998, 10999, 11000, 11001, 11002, 11003, 11004, 11005 and 11051 together into one new Executive Order.

With all the executive orders that destroy the very core of liberty (and can be enacted with a stroke of the pen), even the most casual observer of politics has to be thinking something appears to be wrong about the direction of the country.

If the lesser of two evils is still evil, then voting Democrat or Republican (if we continue to focus on the false left-right paradigm), will solve nothing and we will continue to accept the notion of failure, since we are used to complacency.

Whether certain conspiracies are true, one cannot deny the existence of the Bilderberg Group, Trilateral Commission or Council on Foreign Relations.

However, many ideas can swirl about the intentions  of the aforementioned shadowy entities. We must ask ourselves: Is there a possibility of a shadow government (some speculation points to it perhaps being FEMA or DHS), operating behind the scenes?

Are certain executive orders signed purposefully, to carry out the alleged plans of the so-called elite?

If politicians say they are keeping us safe, then why are they sacrificing our liberty for security?

Why has Posse Comitatus and habeas corpus been eliminated?  In order to see what entities control the money supply, shouldn’t the Federal Reserve be audited?

In the tome, The End of America: A Letter of Warning to a Young Patriot, political activist and social critic Naomi Wolf explains how a once open society can be closed in 10 steps.

1.  Invoke an internal and external threat

People who are afraid are willing to do things that they wouldn’t otherwise do.

2.  Establish secret (unaccountable) prisons where torture takes place

In a secret system, the government does not have to provide any proof of wrongdoing by those it holds, so it can incarcerate anyone it wants.

3.  Develop a paramilitary force

A private military force — under the exclusive direction of the “commander in chief” with no accountability to Congress, the courts, or the public — blurs the line between a civilian police force and a militarized police state.

4.  Surveil ordinary citizens

People who believe they are being watched are less likely to voice opposition. To scare a population into silence, the government need only monitor the activities of a few to make everyone fear that they are being surveilled. Every closed society keeps a “list” of so-called opponents it tracks.

5.  Infiltrate citizen’s groups

Spies in activist groups put psychological pressure on genuine activists by undermining their trust in one another. They may also disrupt legal activities, undermining the effectiveness of group efforts.

6.  Detain and release ordinary citizens

Detention intimidates or psychologically damages those arrested and also lets everyone know that anyone could be labeled an “enemy combatant” and “disappeared.”

7.  Target key individuals

People are less likely to speak out when those who are highly visible, like journalists, scholars, artists, or celebrities, are intimidated or have the livelihoods threatened. Targeting those who are especially visible makes it less likely that people will speak out and robs society of leaders and others who might inspire opposition.

8.  Restrict the press

The public is less likely to find out about government wrongdoing if the government can threaten to prosecute anyone who publishes or broadcasts reports that are critical of the government.

9.  Recast criticism as espionage and dissent as treason

People who protest can be charged with terrorism or treason when laws criminalize or limit free speech rather than protect it.

10.  Subvert the rule of law

The disappearance of checks and balances makes it easier to declare martial law, especially if the judiciary branch continues to exercise authority over individuals but has no authority over the Executive branch.”

While these steps serve as a valid premise to potentially understand what may or may not be lurking around the horizon, I believe being active in the search for information to awaken individuals is an appropriate tool for success.

For if we start believing in hypnotic illusions, all we will have left is our disillusions.

Edited by Madison Ruppert (with some minor additions) if any mistakes are found contact me.

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