Fears About Obama's "National Emergency" Executive Order are Overblown
Most of the executive order issued by President Obama last week is not a dire as it seems on first reading. The order, called for by the Defense Production Act of 1950, plans for the event of a war or national emergency. The act was passed in September 1950 -- that date is important and explains why Congress vested such broad economic powers in the executive branch. In the first war after the start of the Cold War and the end of World War II, Congress established economic powers that are similar to wartime mobilization, but which would usually be part of the acts passed right after a declaration of war. The Defense Production Act essentially established the nation's ability to mobilize in a limited fashion for wars that would themselves be limited and undeclared (it allows the executive branch to order the production of goods and services needed by the government, rations critical materials, and so on).
Conservatives should resist the urge to magnify everything the Obama administration does into a conspiracy. Most of the order amounts to responsible planning in anticipation of some kind of emergency -- the order doesn't declare any emergency or trigger the powers under the Act. There are still a few things here and there, but they still require some kind of announcement of an action or decision. This order just delegates the authority to undertake actions under the DPA already granted to the President, but it still requires the President or the cabinet officer to first make the decision. This order itself is not such a decision.
So, there is a provision that anticipates more government intervention in the energy markets. That power is already in the statute. But the power is not being exercised here, only being delegated from the President to the Commerce and Energy Secretaries -- and they cannot use the power until there is a finding made about shortages in critical materials vital for national security.
There also seems to be some movement to allow the federal government to make loan guarantees. This could turn into more Solyndra-type failures. But it applies, as far as I can tell, only in areas where critical national defense materials are involved. I expect that there should be some fund created somewhere by Congress to provide funding for this pool -- it isn't in this order or in the DPA. Congress should be able to restrict what the administration can do under the order by changing the funding for these programs.
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Comments:
Dec '10
Re: Fears About Obama's "National Emergency" Executive Order are Overblown
John,
I can happily defer to your expertise in these matters. However, without expert parsing, these issues are really upsetting. I don't trust either Obama or those working for him. Whether the sabotage of fundamental freedoms is intentional or just a product of their softheaded twisted ideology doesn't matter much once we have lost the position.
John, I don't think Conservatives are overreacting.
Jim
Jan '11
Re: Fears About Obama's "National Emergency" Executive Order are Overblown
As your podcast partner (Richard Epstein) is fond of pointing out, much of government relies on a certain amount of good faith.
It isn't so much that we see this as evidence of bad faith. It's that we've already seen repeated acts of bad faith on this Administration's part, and we're wary about what would happen if that bad faith were applied to the powers granted by this decree.
Oct '10
Re: Fears About Obama's "National Emergency" Executive Order are Overblown
With Obama's record it's important to follow Reagan's admonition: "Verify, then trust."
Or something like that.
Oct '11
Re: Fears About Obama's "National Emergency" Executive Order are Overblown
I know I am paranoid. I just don't know if I am paranoid enough! It is possible the OWS movement is designed to manufacture the civil unrest to justify invoking this presidential order. It is a similar situation to Senator Palpatine covertly manufacturing the Trade Wars on Naboo in order to justify the Galactic Republic granting him extraordinary powers as the new Supreme Chancellor to restore order, which is the first step on his way to Emperor. Boiled frogs never notice the heat at first.
Aug '11
Re: Fears About Obama's "National Emergency" Executive Order are Overblown
I sure hope so, but coming on the heels of NDAA and SOPA and now an executive order with (at least an appearance of) the ability to control all facets of private business and personal lives makes me feel like I am getting squeezed. I certainly don't want to jump everytime the WH ( or to be fair...Congress) does something but the trust factor keeps moving farther and farther away.
Edited on March 20, 2012 at 8:00pmMay '10
Re: Fears About Obama's "National Emergency" Executive Order are Overblown
Two points apply here.
1) Every president since Korea has signed roughly the same executive order under DPA. It is necessary to operate some critical Defense Department activities. People who panic over the fact of the EO are missing history and context.
2) Because Obama has an unprecedented history of making up new authority as he goes along (telling churches what abortifacients to pay for, telling the Senate when it is in session), we should be particularly vigilant these days.
Mar '11
Re: Fears About Obama's "National Emergency" Executive Order are Overblown
I wonder, has anyone in Washington considered the idea that perhaps it is time to repeal the Defense Production Act of 1950?
Jul '11
Re: Fears About Obama's "National Emergency" Executive Order are Overblown
I'm sorry to disagree with such an eminent expert, but my reading of that order doesn't define "national emergency," and leaves those powers unconstrained, except by decision of a single person, POTUS. I think I'm not paranoid enough, too.