On March 16th, the White House released the National Defense Resources Preparedness executive order. Since then, numerous headlines have railed against this executive order, saying it allows the President to control all U.S resources, and that it establishes peacetime martial law. The truth is, when you look at the facts and the history surrounding this executive order, it’s an update of a similar document that’s been around since 1950 stating certain responsibilities of cabinet members involving national defense.
This executive order connects directly with the Defense Production Act of 1950, which was made law under President Truman after the start of the Korean War. This act authorizes the President to:
a) “require businesses to sign contracts or fulfill orders deemed necessary for national defense,
b) establish mechanisms (such as regulations, orders, or agencies) to allocate materials, services, and facilities to promote national defense,
c) control the civilian economy so that scarce and/or critical materials necessary to the national defense effort are available for defense needs.”
Basically, the Defense Production Act, “confers upon the President authority to force private industry to give priority to defense and homeland security contracts and to allocate the resources needed.” Obama’s latest executive order states in section 101 that, “this order delegates authorities and addresses national defense resource policies and programs under the Defense Production Act of 1950.” Nearly every President has enacted similar executive orders since Truman, so the concept of a national defense preparedness executive order is nothing new. It closely resembles Executive Order 12919, enacted by President Bill Clinton in 1994. These orders are almost exactly alike, and both note that the order is applicable to ensure a prepared national defense “in peacetime and in times of national emergency.”
There are two sections of Obama’s recently released executive order that bear the most weight of the entire document, and these sections reveal the most about the intent of the document itself. Section 103 lists five specific assignments to “executive departments and agencies responsible for plans and programs relating to national defense.” These departments and agencies are assigned to:
a) identify requirements for the full spectrum of emergencies, including essential military and civilian demand
b) assess the capability of the domestic industrial and technological base
c) be prepared, in the event of a potential threat to the security of the United States, to take actions necessary to ensure the availability of adequate resources and production capability
d) improve the efficiency and responsiveness of the domestic industrial base to support national defense requirements
e) foster cooperation between the defense and commercial sectors
Nowhere in these five responsibilities appears to be a direct hand-over of American resources to the executive branch or any agency thereof. As Ed Morrissey of HotAir points out, the words identify, assess, be prepared, improve, and foster cooperation do not “claim authority to seize private property and place them at the personal disposal of Obama.”
Section 201, if taken out of context, could lead one to assume that this executive order allows for executive control over all US resources, but it actually delegates, “the authority of the President…to require acceptance and priority performance of contracts or orders (other than contracts of employment) to promote the national defense of any other contracts or orders, and to allocate materials, services, and facilities as deemed necessary or appropriate to promote the nation defense.” The secretaries of Agriculture, Energy, Health and Human Services, Transportation, Defense, and Commerce are delegated this authority to require acceptance and priority performance of contracts and orders involving certain resources.
Just as the Defense Production Act gives the President the authorities to “prioritize and force contracts,” this executive order gives the secretaries of executive agencies the authorities to prioritize and force contracts involving certain resources that may be necessary, in their judgment, to promote the national defense.
When you look at the facts, this specific executive order doesn’t seem to elicit a government takeover of resources as originally thought. It’s not a blatant power grab by the executive branch. It could be argued, though, that the very concept of executive orders provides an opportunity for the executive branch to expand its power gradually, allowing the executive to, in essence, “make laws” when that power is constitutionally reserved to Congress.
The executive order issued by President Obama last Friday doesn’t spell a total usurpation of America’s resources, but it’s not something to be shrugged off as unimportant, either. This executive order is not the first of its kind, nor will it likely be the last. But the question remains whether or not this executive order lays the foundation for future executive “power grabs.”