by Joshua Marxen
If you are a student at UCSD, then you are about as old as the internet. Some of you were exposed to it only a year or two after you began speaking. Consequently, this generation and it’s contemporaries are becoming the most informed people in history. Not only is knowledge spreading farther, it’s circulating faster, and “secret” information is finding more leaks through which to escape to the public.
In the political realm, this means that Americans are learning things about our government – common practices and routines, latent powers, etc. – that far fewer people knew about in the past. Many are rightfully alarmed about some of this information, but because the internet is only a couple decades old, this information is presented without relevant historical context that bears on our interpretation of it.
Let’s take a couple executive orders that were signed this summer as examples. The executive order itself is a policy tool Americans are still getting used to. We are wary because there is no explicit mention of executive orders in the constitution, so whenever a president uses one, it seems as if he is trying to bypass constitutional checks on his power.
First: E.O. 13603, “National Defense Resource Preparedness,” (NDRP), which was signed on March 16th this year, serves as a template the President can use to place the production and distribution of all essential commodities – agriculture and food, water, energy, transportation, medicine, and labor – under the control of it’s secretaries. Though such powers have only been exercised in instances of war or conflict in the past, the order states that it may be implemented “in peacetime” as well.
Second: E.O.s 13612 through 13615 were all signed on May 21st of this year. These respectively establish orders of succession in the Departments of Commerce and Agriculture, the EPA, and the Office of Management and Budget.
Third: E.O. 13618, “Assignment of National Security and Emergency Preparedness Communication Functions,” was signed on July 6th. Not much in here seems alarming except that it allows the executive branch to “satisfy priority communications requirements [with] commercial, … and privately owned communications resources, when appropriate.” But the order still upset an internet populace uneasy from the recent SOPA and PIPA bills.
When news of these orders hit the internet, netizens began trying to interpret them. Why would the president assert such drastic powers now? Is he constitutionally allowed to claim these powers? What scenarios necessitate a 15-person line of succession in departments like the EPA and the Department of the Interior, which would seem insulated from national emergencies? What are we preparing for? The first answer that comes to mind is war, and the fact that we’re lining up successors for the heads of the landlocked departments of Labor and Agriculture makes us contemplate homeland hostilities.
Although these executive orders are alarming for other reasons, these speculations fall apart when we put them in the larger context in which they’re operating – a context far older than the internet itself.
Take the National Defense Authorization Act. Before 2011 – when its provisions on indefinite detention, without trial, of civilians and non-civilians alike suspected of terrorist collusion made headlines – nobody had ever heard of this annual bill. The internet exploded, and overnight, online petitions were organized demanding that these provisions be struck from the bill. After the dust settled (and the bill passed unchanged), a few savvy pundits reminded us that these provisions were not actually expansions of existing power – most of these powers had been authorized after 9/11 by Congress’s Authorization for Use of Military Force. The only substantial difference was that instead of just members of Al-Qaida and the Taliban, the law now applied to “associated forces” of either group – a looser criterion than before, but not the major extension of power that the internet perceived.
So what about NDRP? If these aren’t new powers, why haven’t we heard of them? When the order was originally written in 1994 by Bill Clinton, publicly available internet was only one year old. What Obama signed in March was simply an update of that order. Contrary to net gossip, Clinton’s version of the order also explicitly provided for it’s implementation in peacetime. Even back then, the order was nothing new. The President had been granted every authority claimed in NDRP by the Defense Production Act of 1950 – as cited in the order itself – which was passed in response to the beginning of the conflict in Korea. President Truman signed an executive order very similar to NDRP, and it has been renewed and updated by every president since then. “Preparedness Communications” is merely an extension of these powers with respect to communications technology not available in 1994.
What about the orders of succession? These too were simply updates of four older orders, signed by Bush in December 2001 along with six others, providing orders of succession in departments like H.U.D., Labor, and Interior.
The truth is, Presidents do not use executive orders to unilaterally create new laws or powers. Executive orders have been around since 1789, and are the president’s tool for invoking any power that he/she has been granted by Congress. As with the orders cited above, executive orders normally cite the Congressional Act that delegates to them the power they invoke in the order.
But just because a policy is regular doesn’t mean it is constitutional. In order to determine whether these powers are legitimate, we need to ask, “what is a National Emergency?”
Over America’s history, Presidents have asserted the power to declare a National State of Emergency. Washington declared an Emergency during the Whiskey Rebellion, Lincoln when the Southern states seceded, Roosevelt during the Great Depression and before World War II, Truman at the beginning of hostilities in Korea… and so on. The reason for declaring an Emergency is usually an impending threat to national security or economic downturn. During National Emergencies, certain congressionally delegated powers become available to the President that he or she cannot use at other times; these include the power to make economic interventions, suspend habeas corpus, and conscript and commit troops to conflicts.
This applies to modern Presidents too. We have been in a continuous state of National Emergency since 1995, when Clinton imposed sanctions on Iran for unclear reasons. These sanctions have been renewed every year since then, and were expanded by Obama on July 31st of this year due to allegations of Iran’s expanding nuclear program. Since ‘95, 20 other National Emergencies have been declared, many of which are still in effect, including those declared by President Bush after 9/11.
Context matters. When the internet brings us this news, we interpret the President’s actions as a sign that war is approaching, and that he is securing for himself radical wartime powers. When we dig into the past (also available on the internet, but less buzzworthy), we see that not only are these actions not an expansion of power, but that they have been available to Obama since he took office and that many of them were available to Bush even before 9/11. We see that we have been in a perpetual state of quasi-warfare for the last decade. Obama isn’t securing radical new powers – he’s dusting off radical old ones.